Rubin on Probate Litigation

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, &quo

Wilson v. Wilson , 279 So.2d 160 (Fla. 4th DCA 2019) This decision deals with whether subsequent to executing a prenuptial agreement, language in a decedent's trust directing the trustee to set aside "as much property as is necessary to satisfy the Wife's elective share" constituted a modification of the prenuptial agreement such that the wife could then elect to take her elective share. The Court found that it did not. The prenuptial agreement contained a clear waiver of the elective share. It also provided that the agreement could only be modified in writing, signed by both parties. The agreement allowed the couple to make testamentary gifts to each other without invalidating the agreement.  Following the decedent's death, the wife filed a notice of election to take her elective share in accordance with the trust.  The Court held that the prenuptial agreement contained a clear and unambiguous waiver of the elective share. The creation of the trust d

Manor Oaks, Inc. v. Campbell , 276 So.3d 830 (Fla. 4th DCA 2019) It is not uncommon for a health care surrogate or an agent under a power of attorney to sign a nursing home admission form for an elderly family member who is unable to do so for himself. These admission forms may contain more than just health care related or financial related provisions, so it is important to consider the nature and the scope of the family member's authority in determining whether they can bind someone to all of the terms of the agreement. In this instance, the nursing home admission form contained a binding arbitration provision. The nursing home argued that because the form was signed by the decedent's sons as surrogates under a document entitled "Durable Power of Attorney Containing Health Care Surrogate Decisions," the decedent was bound by the arbitration clause. The Court found that an arbitration provision can be enforced if either: (1) the power of attorney makes a spec