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Lefkowitz v. Schwartz

Lefkowitz v. Schwartz, --- So.3d --- (Fla. 5th DCA 2020)


This case revisits the applicability of the "trust exception" to creditors claims in a probate proceeding. Here, the creditor's claim was based upon money lent by the creditor to the decedent, which the decedent promised to repay upon the sale of certain real property. The real property was apparently sold prior to the decedent's death but the money was not repaid. Upon the decedent's death, the creditor filed a creditor's claim and in her independent action, she asked the trial court to find that the sale proceeds were held in a constructive trust for her benefit. On appeal, the Court reversed, holding that the "trust exception" did not apply, and that the creditor's claim was an ordinary creditor's claim and the proceeds of the sale were assets of the estate subject to Florida statutes governing the priority of claims.
The "trust exception" was based on the idea that assets h…

Barrett v. Kapoor

Barrett v. Kapoor, 278 So.3d 876 (Fla 3d DCA 2019)
In this decision, the Court addressed the tension between the vesting of bequests and the settlor's intent. Here, the grantor's trust provided that upon his death, one of his daughters would have one year within which to purchase a piece of property, and upon the sale of the property, provided for the sale proceeds to be distributed to his other two children. It also stated that if one of the children died before receiving his or her share in full, the balance of their share should be distributed per stirpes to that child's then living descendants, or if none, to the grantor's living children.
As these things go, one of the children entitled to receive half of the sale proceeds died after the grantor, but before receiving her share of the trust. She had no children. The deceased daughter's estate argued that her right to the proceeds vested at the grantor's death and should therefore pass to her estate. The Court…

Lovest v. Mangiero

Lovest v. Mangiero, 279 So.3d 205 (Fla. 3d. DCA 2019)
This decision illustrates some of the difficulties that arise when guardianship and estate proceedings intersect. Here, after the ward died, the guardian and then personal representative sought to pay some of the ward's creditors using artwork done by the decedent, an artist. One of the beneficiaries of the ward's estate objected, arguing that the guardianship court's orders violated her due process rights, the guardianship court lacked subject matter jurisdiction and the guardian should have provided proper accountings. 
The Court held that the beneficiary's due process rights were not violated because notice  was sent to her of the petition to pay the debts with the artwork by certified mail (even though it was returned as undeliverable). It noted that FPR 5.060(a) allows an interested person who desires notice to file a written request for notice of further proceedings, which then allows the trial court the opportu…

Reid v. Guardianship of Reid

Reid v. Guardianship of Reid, 277 So.3d 1053 (Fla. 4th DCA 2019)
It is well established that under Florida law, the most important aspect of guardianship law is the protection of the ward. This basic philosophy must be taken into consideration in all aspects of guardianship administration, including awards of attorney's fees. Accordingly, F.S. 744.108(2) provides the criteria that a court must consider in determining reasonable attorneys' fees in guardianship proceedings. The list of criteria includes the time and labor required, the novelty and difficulty of the questions involved and the skill required, the fee customarily charged, and the nature and value of the incapacitated person's property.
Here, in determining a reasonable award of attorney's fees for an appellate lawyer in a guardianship proceeding, the trial court did not consider the nature and value of the guardianship assets (there were none). The Court held that by approving the reasonableness of the fees, …

Cantero v. Estate of Caswell

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, "What was …

Wilson v. Wilson

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 did not modify the…

Manor Oaks, Inc. v. Campbell

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 specific grant …