Rubin on Probate Litigation

Helfenbein v. Baval , 157 So.3d 531 (Fla. 4th DCA 2015), 2015 WL 669595 This decision deals with the validity of a will of which one of the witnesses signed an affidavit stating that he did not sign the will in the presence of the other witnesses.  The Court reversed the trial court's summary judgment which found that the will was not facially invalid because the trial court only considered the validity of the self-proving affidavit, and not the validity of the signatures of the witnesses to the actual will.  First, the Court held that the witness's allegation that he did not sign in the presence of another witness creates a genuine issue of material fact as to the whether the will was initially executed in conformity with F.S. 732.502.  Second, it held that the signatures on the self-proving clause were problematic, since the notarized paragraph lists four people, and only three people actually signed.  This raised an issue of the veracity of the three signers ...

Lyons v. Lyons : 162 So. 3d 212 (Fla. 4th DCA 2015), 2015 WL 543106 While this opinion came about because of a trust contest among family members, the decision relates to broader principles of discovery relevant for all litigators.  The case centered around a privilege objection to the production of documents from the trust accountant, a nonparty, pursuant to Florida Rule of Civil Procedure 1.351.  The Court held that under the amended Rule 1.351, an objection does not automatically trigger a deposition pursuant to Rule 1.310, and instead, the court has the ability to rule on the objection.  A court is required to rule on any claim of privilege, and should conduct an in camera inspection prior to production of the privileged documents.  The trial court has discretion to fashion the process to deal with the production of documents, and here, where the trial court entered an order providing a procedure for the accountant to gather the documents, for review of the ...

Silveira v. Quiroga , 156 So.3d 574 (Fla. 3d DCA 2015), 2015 WL 350723 This case involved a dispute between a ward's next of kin, her sister, and her court-appointed guardian, the Guardianship Program of Dade County, Inc. ("GDPC").  The court appointed GDPC as the guardian, despite the fact that the sister had filed a notice of unavailability for the date of the hearing on the petition to determine incapacity and for appointment of a guardian.  The record did not explain why the court appointed GDPC when the sister was willing and able to act as guardian.  Following the appointment of GDPC as guardian, the sister filed numerous pro se motions seeking to be appointed as her sister's guardian, but her motions were procedurally deficient.  The court eventually entered an order requiring the sister to hire an attorney and directing the clerk to accept no further pleadings from her.   On appeal, the Court held that the sister was not required to hire an atto...

Van Vechten v. Anyzeski , 157 So.3d 350 (Fla. 4th DCA), 2015 WL 248731 This appeal centered around two probate court orders- an order denying a trustee's motion for attorney's fees and an order compelling a distribution from the trust to the beneficiary's estate without offsetting the trustee's attorney's fees.  The trustee argued that she had both adequately plead her entitlement to attorney's fees and that the court erred in finding that the beneficiary's estate did not waive its objection to her alleged inadequate pleading of an entitlement to attorney's fees. The Court held that the beneficiary's estate did  waive its objection to the trustee's alleged inadequate pleading of her entitlement to attorney's fees.  It noted that generally, a claim for attorney's fees, whether based on statute or contract, must be pled.  However, where a party has notice  that its opponent claims entitlement to attorney's fees, and by its cond...

Blechman v. Estate of Blechman , 160 So.3d 152 (Fla. 4th DCA 2015), 2015 WL 71730 This case dealt with whether a provision in an operating agreement of a limited liability company caused a decedent's membership interest to immediately vest in his children upon his death, such that his interest was not part of the probate estate.  The decedent attempted to devise a portion of his interest to his girlfriend in his will.  The Court held that since the attempted devise to the girlfriend violated the operating agreement, which only allowed the decedent to devise his interest to his immediate family members, upon his death the default provision of the operating agreement was activated, and his interest immediately vested in his children (as the takers under the default provision).  

Rene v. Sykes-Kennedy , 156 So.3d 518 (Fla. 5th DCA 2015), 2015 WL 24081 This case centered around whether a guardian of the property for a ward was able to amend that ward's revocable trust to appoint the guardian as trustee.  The named successor trustee, the ward's granddaughter, objected to the modification and argued that the guardianship court did not have the authority to enter into an order modifying the ward's revocable trust.  The granddaughter argued that because F.S. 736.0201 requires that a judicial proceeding regarding a trust be commenced by filing a complaint, the trial court's order in the guardianship proceeding modifying the trust was improper.  The Court disagreed.  It held that because F.S. 744.441 grants a guardian the ability to exercise any power as trustee that the ward might have exercised, and since here, the ward as trustee of her own trust had the ability to amend it, upon court approval the guardian had the same ability to amend the ...

Rudolph v. Rosecan ,  154 So.3d 381  (Fla. 4th DCA 2014), 2014 WL 6674749 This decision deals with who is considered an "interested person" in a guardianship proceeding for purposes of objecting to a guardian's annual accounting.  Here, a father was appointed plenary guardian of his adult autistic son's person and property.  A parenting plan was incorporated into the order appointing the father as guardian, and that parenting plan provided for the father and mother to have shared decision making authority and information sharing rights with regard to their son.  It expressly provided that the father had ultimate authority to make decisions about his son's person, but did not address financial decisions. The father voluntarily provided the mother with copies of his annual guardianship accountings over the years, but eventually sought a court order declaring that the mother was not an interested person for purposes of the annual accounting.  The tria...