Rubin on Probate Litigation

Martinez v. Guardianship of Smith , --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 1238445 In this case, a wife appealed the order appointing a professional guardian for her husband, since the trial court failed to apply the statutory presumption of F.S. 744.3045 where her husband had given her power of attorney and appointed her as his preneed guardian and health care surrogate.  The Court held that because the trial court failed to make a specific finding that the appointment of the wife was contrary to the best interests of the ward, the order appointing professional guardian was reversed. In its decision, the Court detailed the various ways the professional guardian and the wife were at odds about the ward's care.  Particularly, their disputes centered around the ward's residence and the fact that he had been moved from institution to institution.  The Court ultimately held that the wife's conflicts with the institutions and her difficultly communicating with the s

Ciungu v. Bulea , 162 So.3d 290 (Fla. 1st DCA 2015), 40 Fla.L.Weekly D.689c The decedent's here, a husband and wife, died intestate owning property in both Florida and Romania. One of their children filed Petitions for Administration in both estates and was appointed as personal representative.  He filed probate inventories and served them on his sister and no objections were filed. The trial court entered an order requiring the personal representative to hold his sister's share of the Estate assets in a restricted account until the sister had fulfilled her obligation to ensure legal title to the Romanian properties was properly vested in the persons entitled to receive those properties under Romanian law. The sister filed a motion to vacate that order, asserting that the probate court lacked subject matter jurisdiction over the Romanian property.  At the hearing on the Motion to Vacate, the trial court heard several other issues and ultimately made the following decisi

Blinn v. Carmen , --- So.2d --- (Fla. 4th DCA 2015), 40 Fla. L. Weekly, D678b In this decision, the Court affirmed a trial court's decision invalidating a will based on undue influence because substantial competent evidence supported the finding.  The facts of this case are familiar to anyone who has practiced in this area.  In 2007, the decedent married his fourth wife at age 82, at a time when his mental health had already begun to deteriorate and he already suffered from progressive dementia.  He ultimately changed his estate plan to leave everything to the wife. While I always enjoy seeing an undue influence decision, this one falls squarely in line with the undue influence cases we are familiar with.  The wife's behavior was egregious-- not only did she successfully persuade her husband to abandon his prior estate plan (which left everything to his daughter) and instead leave everything to her, but she alienated him from his family, she aggressively convinced him th

Faulkner v. Woodruff , 159 So.3d 319 (Fla. 2d DCA 2015), 2015 WL 968723 In this fee dispute, the Court held that Section 733.6175, which provides the circuit court with the authority to determine the reasonableness of compensation paid to personal representative or any person employed by the personal representative, does not require the personal representative to interplead himself as a respondent in an action to review fees.  The personal representative, like a beneficiary of an estate, has the right to have the court review the fees, and the party seeking to be paid has the burden of proof to establish that their fees were reasonable.

Steiner and Steiner v. Guardianships of Steiner , --- So.2d --- (Fla. 2d DCA 2015), 40 Fla. L. Weekly D559a The Second District has now weighed in with the First, Fourth and Fifth Districts about the "statutory gap" in the Guardianship Code dealing with the payment of the court-appointed attorney's fees in situations where a petition to determine guardianship and incapacity is brought in good faith, but incapacity is not found and guardianship is not established.  As the Fourth District held in the Klatthaar  decision, F.S. 744.331 fails to address these situations leaving court-appointed attorneys with a right without a remedy.  The Court urged the legislature to remedy this situation.

Snider v. Metcalfe , 157 So.3d 422 (Fla. 4th DCA 2015), 2015 WL 444497 While part of a trust dispute, this case involved the procedural question of when one must raise a defense of lack of personal jurisdiction in a proceeding.  Here, the Court held that even though the trustee of the trust at issue did not assert her defense of lack of personal jurisdiction in her original motion to dismiss a beneficiary's complaint for breach of trust, because she raised it in a subsequent amended motion to dismiss, she did not waive the defense.  Interestingly, the Court held that neither filing a notice of intent to use trust funds to pay the trustee's attorney's fees nor the filing of two responses to discovery requests amounted to "submission to the court's jurisdiction" or requests for affirmative relief sufficient to waive the defense of lack of personal jurisdiction  The Court distinguished these facts from situations where the party asserting the defense obtaine

Whiting v. Whiting , 160 So.3d 921 (Fla. 3d DCA 2015) In this guardianship, the guardianship court entered into an order appointing a guardian for an alleged incapacitated person based upon a Stipulation for Limited Guardianship entered into by the parties.  That Order restricted the ward's ability to manage her personal financial affairs beyond a $1,500 limit for any single transaction and also limited her ability to give gifts to $1,500 per person per year.  Following the entry of the Order, the Ward amended her estate plan to leave all of her assets to one of her sons, leaving out her other two sons who had previously been included as equal beneficiaries.   Following the Ward's death, one of the excluded sons sought to set aside the trust amendment based upon the plain language of the Order.  The trial court concluded that the Order was clear and unambiguous, refused to consider parol evidence, and construed the provisions limiting the Ward's ability to make gif