Rubin on Probate Litigation

Aldrich v. Basile , --- So.3d --- (Fla. 2014), 2014 WL 1250073 The issues in this case stem from an "E-Z Legal Form" executed by the decedent, which apparently neglected to include a residuary clause.  Thus, the decedent left a will which simply devised a list of specifically described property to her sister if she survived her, and if she did not, left that property to her brother.  When the sister predeceased the decedent, she left the decedent additional property which was not included in that list.  This meant that when the decedent ultimately died, she died owning property that was not listed in her will.  While she did draft a document, entitled "Just a Note," which stated that all of her "worldly possessions" should pass to her brother, this document was not properly executed and was therefore not an enforceable testamentary instrument under the Florida Probate Code. The brother argued that he was entitled to all of the property, including

Campbell v. Chitty , 131 So.3d 9 (Fla. 1st DCA 2012) This case involved an appeal of a trial court order imposing monetary sanctions on a trustee of several trusts for breach of fiduciary duty.  The Appellate Court remanded for two reasons: (1) The trusts had an indemnification clause which indemnified the trustee unless her actions were negligent and the trial court did not make a finding of negligence, and (2) The judgments against the trustee required her to both repay the trusts and  have her share of the trusts be set off by the same amount, which was essentially double recovery.

Romano v. Olshen , 153 So.2d 912 (2014), 2014 WL 940700 The Appellate Court described this case as one "at the intersection where guardianship law meets the law concerning forms of ownership of joint bank or brokerage accounts."  It involved the ability of a guardian of the property and the attorney for guardian to recover fees from an account owned by the ward and his wife as joint tenants with rights of survivorship. The ward and his wife were at odds when he was declared incompetent, and their divorce proceedings were put on hold during the guardianship.  Eventually, the ward died while still married to his wife.  The main asset of the guardianship estate was an account titled in the names of the husband and the wife, as joint tenants with rights of survivorship.  Even though the guardianship court authorized the fees of the guardian and his attorney, other than the account held with the wife, the guardianship estate did not have enough liquid assets to pay those

Bivins v. Rogers , 147 So.3d 549 (2014), 2014 WL 940659 In this decision, the Appellate Court affirmed the trial court's determination that a ward's son lacked standing to petition the guardianship court for a change of residence.  F.S. 744.2025(1) requires a guardian to obtain court approval before removing a ward from the state or to another non-adjacent county.  It does not, however, authorize anyone other than the guardian to apply for court approval to change the residence of the ward. The son argued that he should have standing to bring his petition since he is an "interested person" in the guardianship.  He cited the decision in Hayes v. Guardianship of Thompson , which stated "that if the person is entitled to notice or authorized to file an objection under the Florida Guardianship Law or the Florida Probate Rules, that person has standing to participate in the guardianship proceeding." Hayes v. Guardianship of Thompson , 952 So.2d 498, 506

In re Guardianship of Rawl , __ So.3d __, 2014 WL 889050 An attorney for a ward, noticing internal inconsistencies in the reports of the examining committee, took it upon himself to contact one of the committee members and ask her to reassess the ward.  He then attempted to file the reassessment with the guardianship court, but the guardianship court said it was "inappropriate" for him to have contacted an examining committee member, and similarly it was "inappropriate" for him to file the reassessment.  At the same time, however, the court appointed a second examining committee to evaluate the ward, because it was troubled by the fact that the reassessment contained different findings than the original assessment, and because it also noted the inconsistencies in the original reports. The second examining committee found the ward to be completely incapacitated and appointed guardians of the person and property for the ward.  The attorney then filed for his

Peck v. Peck , 133 So.3d 587 (Fla. 2d DCA 2014) When attempting to modify or terminate an irrevocable trust, most trust attorneys will first run through the litany of available statutory methods of modification provided to us in the Florida Trust Code (for a review, click  here ).  If none of the statutory methods work in a given situation, most attorneys will rely on the common law to modify an irrevocable trust.   The Court in this case upheld a lower court decision allowing modification of an irrevocable trust under the common law.  The trust being modified came about because the settlor's father's will devised the residuary of his estate to two trusts established by his children for their own benefit.  The daughter's trust was settled by the daughter, was irrevocable and named the daughter and her brother as co-trustees. Twenty years after the trust was established, the daughter filed a petition to terminate the trust and her children agreed to the termination.