Rubin on Probate Litigation

Inglis v. Casselberry , 200 So.3d 206 (Fla. 2d DCA 2016) And the Berlinger versus Casselberry saga continues.  As you may remember, we first met Bruce Berlinger and Roberta Casselberry back in 2013, when Roberta, the former spouse, obtained an order from the court affirming writs of garnishment on discretionary distributions to Bruce, the former husband, from four family trusts.   Roberta then filed supplemental proceedings against Bruce and trustees of several trusts of which Bruce and his children were beneficiaries.  She sought discovery against Bruce and the trustees, seeking information about distributions to Bruce and his adult children.  The trustees objected with regard to the distributions to the adult children, arguing that those distributions were not at issue, and that the children have a constitutional right to privacy with regard to their personal financial information.  The trial court overruled the objections, noting the litigation histo...

Linde v. Linde , 199 So.3d 1102 (Fla. 3d DCA 2016) While it is rare that a guardianship proceeding ends with a restoration of the ward's rights, F.S. 744.464 provides a process for doing so.  In this decision, the Court considered what evidence can be introduced at a hearing under F.S. 744.464, as compared to the evidenced used to make an initial determination of incapacity under F.S. 744.331. At the hearing to restore the ward's capacity, the trial court (1) granted an injunction which prevented the court-appointed independent physician from having communications with the ward's temporary guardian and (2) granted the ward's motion in limine to prevent the temporary guardian from presenting evidence of the ward's prior medical history and background.  The temporary guardian appealed. The Court held that F.S. 744.464 which governs restoration proceedings differs from initial proceedings of incapacity under F.S. 744.331.  F.S. 744.331 requires examining c...

Vassallo v. Bean , 2016 WL 3474981 (Fla. 3d DCA 2016) This decision deals with the question of whether a drafting attorney can be compelled to answer questions about a testator's reasons for disinheriting his children at a deposition.  The attorney claimed that the statements were confidential pursuant to Florida Bar Rule 4-1.6.  The Court found that Rule 4-1.6 applies only in situations other than those where evidence is sought from the lawyer through compulsion of law, and that F.S. 90.502(4)(b) (which states that there is no attorney-client privilege when a communication is relevant to an issue between parties who claim through the same deceased client) required the lawyer to answer the questions.

Bernal v. Marin , 196 So.3d 432 (Fla. 3d DCA 2016) This decision addresses the validity of a purported trust revocation under F.S. 736.0602.  The Court, interpreting the plain language of F.S. 736.0602 and the legislative history, found that a revocable trust can be revoked without a specific reference to the trust where there is clear and convincing evidence that the settlor intended to revoke the trust. Here, the decedent executed a trust leaving her estate to charity.  The trust did not provide a method for revocation.  She later executed a will leaving her estate to a friend, which stated that it revoked all other trusts made by her.  The will did not specifically refer to the trust. F.S. 736.0602 provides that a settlor may amend or revoke a trust: (a)  By substantial compliance with a method provided in the terms of the trust; or (b)  If the terms of the trust do not provide a method, by:         1.  A later will or codicil ...

Steele v. Brown , 197 So.3d 106 (Fla. 1st DCA 2016) This decision, while dealing mostly with the court's ability to provide relief from a judgment pursuant to Florida Rule of Civil Procedure 1.540, also addresses whether a trial court has inherent authority to set aside a homestead order as if it were a non-final order.  The Court held that a homestead order is an appealable, final order, since it determines an interest in property and finally determines a right of interested persons.  The Court noted that leaving appealable, final probate orders open to discretionary review and termination by the courts would upset the probate code's goal of quickly and finally accomplishing the settlement of estates.  

Anderson v. McDonough , 189 So3d 266 (Fla. 2d DCA 2016) In this appeal, the appellant appealed a final order requiring him to pay fees and costs to his mother's estate following an unsuccessful will contest.  The fee award was granted pursuant to F.S. 733.106 (which provides that the court can direct from what part of an estate fees are to be paid) even though the appellant did not receive anything from the estate.  The Court held that this statute does not authorize the imposition of a fee award beyond what may be paid from a person's share of the estate, and does not create personal liability for attorney's fees.   The estate attempted to argue that the fee award was a sanction for bad faith litigation.  The Court disagreed, finding that neither F.S. 57.105 nor the inequitable conduct doctrine applied here, where the estate failed to properly invoke the procedures of F.S. 57.105, and where even though the appellant lost his will contest, the case was not s...

The Northern Trust Co. v. Shaw , --- So.3d --- (Fla. 2d DCA 2016) This decision deals with an interpretation of a surviving spouse's rights under a prenuptial agreement.  While the spouse argued that she was entitled to both $500,000 under the agreement and  other assets left to her by the decedent, the personal representative felt that she was only entitled to the $500,000, and the other assets left to her by the decedent should be taken into account in satisfying that amount. The Court, relying on North Carolina contract law, ultimately felt that the personal representative's interpretation was correct. The prenuptial agreement at issue stated that the wife would receive from the husband the sum of $500,000 from his estate.  It defined "estate" as his probate estate, any living trust created by him, as well as life insurance, individual retirement accounts, qualified and nonqualified deferred compensation plans and other assets that may pass by beneficiary ...

Howard v. Howard , --- So.3d --- (Fla. 4th DCA 2016) While most practitioners are familiar with the rules and procedures surrounding the guardianship process, many are less familiar with the procedural requirements for the appointment of a guardian advocate on behalf of someone with a developmental disability.  This decision deals with two such procedural requirements: (1) what constitutes a finding of "good cause" to proceed with the guardianship proceeding without the potential ward present and (2) the requirements for a written order appointing guardian advocates.   Good Cause to Proceed Without Potential Ward : Here, the potential ward did not attend the hearing on her family's petition for the appointment of guardian advocates.  The ward's attorney did not waive his client's presence, but did state on the record that he had communicated with her and she did not want to attend.  The ward's father testified about the ward's physical and men...

Richard v. Richard , ---So.3d --- (Fla. 3d DCA 2016) This decision deals with the application of the relation back doctrine found in F.S. 733.601, and whether it would apply to validate a notice to creditors that was published one day prior to the appointment of the PR.  The Court interpreted the meaning and history behind F.S. 733.601 and ultimately found that the doctrine does apply to validate the earlier filed notice to creditors. The probate court had held that the notice to creditors published the day before the order was entered appointing the personal representatives was a nullity, and that the relation back doctrine did not apply to validate the act of publication.  In doing so, it found that a statement of claim filed more than three months after the first publication date was a timely filed the claim. The Court disagreed with the probate court regarding the application of the relation back doctrine.  F.S. 733.601, which codifies Florida common law ...

Woodward v. Woodward , 192 So.3d 528 (Fla. 4th DCA 2016) This decision deals with whether res judicata and laches barred a beneficiary's claim against a trustee.  The Court held that neither applied, since the beneficiary's two claims against the trustee did not contain identity of the causes of action, and because the beneficiary did not know about the trustee's actions until he was served with an accounting. In 1996, the beneficiary of the Trust at issue filed suit against the trustee for breach of fiduciary duty, alleging that the trustee failed to account, improperly mortgaged real property and improperly paid expenses of the trust.  During the pendency of the action, the trustee transferred the Trust's assets to two new trusts and terminated the Trust at issue.  The trial court eventually dismissed this complaint. In 2011, the trustee served an accounting for the Trust, and the two new trusts, on the beneficiary.  The accounting showed the terminati...

Hall v. Hall , 190 So.3d 683 (Fla. 3d DCA 2016) The Court took the opportunity in this decision to "reiterate a fundamental tenet of appellate advocacy."  Appellants attempted to appeal a probate court decision denying an undue influence claim and petition to revoke probate of a will and trust.  The probate court had heard the testimony of those present at the execution of the challenged documents and expert testimony regarding the decedent's medical records, and found that the challenged documents were properly executed, that they were prepared at the request of the decedent and that they were not procured by the appellee. Instead of simply PCAing the probate court's decision, the Court wrote this opinion, affirming the probate court's decision, and reminding appellants that in an appeal setting, the appellants are obligated to provide a statement of facts and to interpret the evidence in the light most favorable to sustaining the conclusions of the finder o...

Giller v. Giller , 190 So.3d 666 (Fla. 3d DCA 2016) This case involved whether a personal representative has the right to bring a suit for declaratory action under F.S. 689.07(1), which deals with real estate deed and conveyances which add the words "trustee" or "as trustee" to the name of the grantee, or whether relief under that section is limited only to subsequent purchasers or others relying on the deed. The personal representatives brought their declaratory action  in the probate proceeding   after learning of the existence of six parcels of real property titled in the name of the decedent "as trustee."  They sought a declaration from the probate court that the parcels were owned by the decedent in fee simple and that the properties became assets of the estate after his death.  Their brother argued that they lacked standing to sue under F.S. 689.07(1) because that section does not apply until after a subsequent conveyance of the property tak...

Genauer v. Downey v. Downey, P.A. , 190 So.3d 131 (Fla. 4th DCA 2016) Does a trust beneficiary have the right to intervene in trust litigation already being defended by the trustee? In this decision, which involved a dispute about the right of an attorney for a former trustee to recover his fees from the trust, the Court ultimately held that the beneficiaries of the trust had a sufficient interest in the proceeding that they should have been given the right to intervene and participate. The trial court had held that the beneficiaries had the right to intervene, but that because the successor trustee was defending the trust, the beneficiaries did not have status as a party and did not have the right to file any motions, answers, counterclaims, or engage in any discovery.  The Court held that the limitations placed on the rights of the beneficiaries to intervene were such that the trial court's order was a de facto denial of the right to intervene. Florida Rule of Civil Pr...

Parker v. Parker , 185 So.3d 616 (Fla. 4th DCA 2016) This decision deals with whether an estate is an indispensable party in a proceeding to recover properties transferred by the decedent prior to his death.  The beneficiaries of the estate argued that the estate was an indispensable party pursuant to F.S. 733.607, which provides, generally, that a personal representative has the right to take control of the decedent's property.  The Court held that since properties transferred during the decedent's life are no longer the decedent's  property, the estate does not need to be joined as a party to a suit to set aside those lifetime transfers.

Oreal v. Steven Kwartin, P.A. , 189 So.3d 964 (Fla. 4th DCA 2016) This appeal deals with a claimant's attempt to collect interest due the claimant on a promissory note.  The claimant filed a timely statement of claim in the estate, seeking payment due on a note plus interest.  The probate court disallowed the claimant's request for default interest under the terms of the note and imposed a setoff to lower the amount of default interest because the court believed that the claimant should have filed a motion to compel payment earlier than it did. The Court reversed, holding that pursuant to F.S. 733.705(9), which provides that "[i]nterest shall be paid by the personal representative on written obligations of the decedent providing for the payment of interest," the claimant was entitled to the full default interest under the terms of the note.  It found that the probate court had erred by imposing a setoff, because a court cannot rewrite a contract to relief a p...

Vigliani v. Bank of America , 189 So.3d 214 (Fla.2d DCA 2016) This decision is an interesting one because it involves both a review of the uncertainty faced by practitioners in 2009 regarding the future of the estate tax exemption, and somewhat strange language in a trust meant to deal with that uncertainty.   Here, the trial court was asked to consider whether a decedent's revocable trust required a Family Trust to be funded with $3.5 million (the exemption amount in 2009), $5 million (the exemption amount in 2010), or some other amount.  The trustees filed for declaratory relief to obtain a judicial determination of this issue, and the trial court held that the Family Trust should be funded with $3.5 million. The Appellate Court disagreed with the trial court's analysis.  First, it felt that the actual division and funding of the trusts were the responsibility of the trustee of the trust under the terms of the trust and F.S. § 736.0801. The Court also went ...

Schlesinger v. Schlesinger , 186 So.3d 618 (Fla. 3d DCA 2016) This case involved a dispute between the former spouse and the widow of a decedent regarding the right of the widow (as co-personal representative of the decedent's estate) to discover personal bank records of the former spouse.  The widow argued that she needed the discovery in order to determine whether the decedent had violated the terms of their post-nuptial agreement by making gifts to his former spouse, and decreasing the portion of his estate which would pass to the widow.   The Court granted the former spouse's petition to quash the trial court's order denying her motion for protective order to bar discovery of her  banks' records.  It held that the widow, as co-personal representative, has the right to his  banks' records, which she could use to make the determination of whether improper gifts were made.  It also held that the discovery was premature, since no determination had ...

Smith v. Smith , 199 So.3d 911 (Fla. 4th DCA 2016) This decision deals with the question of whether a ward's right to marry is subject to court approval during a guardianship proceeding.   Florida Statutes § 744.3215(2)(a) provides: (2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right: (a) To marry.  If the right to enter into a contract has been removed, the right to marry is subject to court approval.   The Court held that the plain language of the statute does not state that a "marriage" is subject to court approval, but instead that the "right to marry" is subject to court approval.  Therefore, it held that if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.

In re Guardianship of Mount , 189 So.3d 213 (Fla. 2d DCA 2016) In this short opinion, the Court was asked to consider whether a guardianship court could compel the co-trustees of a ward's revocable trust to return assets to the guardianship.  The Court held that unless an action was commenced by the guardianship against the co-trustees, the Ward's beneficial interest in the trust did not give the guardianship court the authority to override the decisions of the co-trustees in the management of the trust.  

Gort v. Gort , --- So.3d --- (Fla. 4th DCA 2016) In this decision, the Court considered, among other things, whether a petition to determine incapacity may be voluntarily dismissed.  The statutes governing guardianship do not expressly address this issue.  The statute states that once a petition is filed, the court shall set  the matter for hearing within certain time constraints.  F.S. 744.331.  It also states that a court shall dismiss  a petition if the examining committee members conclude the person is not incapacitated.  But the Court found that the statute is silent on whether a court is required to hold an adjudicatory hearing every time a petition is filed, and is silent on whether a party may voluntarily dismiss a petition to determine incapacity. The Court found that the Jasser v. Saadeh  decision, 97 So.3d 241 (Fla. 4th DCA 2012) was distinguishable from this case.  In Jasser , the court distinguished a voluntary dismissa...

Blackburn v. Boulis , 184 So.2d 565 (Fla. 4th DCA 2016) This appeal centers around two distinct issues with regard to a surviving spouse's elective share: (1) first, whether a court can direct the payment of interest on a portion of the elective share amount, and (2) whether attorney's fees can be charged against the elective share. Interest on elective share: The probate court ordered that the spouse was entitled to interest at the statutory interest rate on forty percent of the elective share amount, from the date of the order determining the value of the spouse's minimum elective share.  The Court held that it would be inequitable for the spouse to be denied the opportunity to a reasonable return on her elective share, and that it would likewise be inequitable for the spouse to enjoy a windfall of interest on a portion of the value of the elective share, which due to taxes, she would not be entitled to retain (since the elective share must bear its own taxes...

Dowdy v. Dowdy , 182 So.3d 807 (Fla.2d DCA 2016) This decision centered around whether the construction of a trust could support the issuance of a temporary injunction directing the trustee to deposit proceeds of a property sale into the court registry pending the court's decision on the construction petition.   A husband and wife established a family trust which owned real estate.  Each had children from previous marriages.  Following the husband's death, the wife amended the trust to remove her husband's children as successor trustees and beneficiaries.  She then sold the trust property.  One of the husband's sons learned of the sale and filed a petition for construction of the original trust and a temporary injunction to compel preservation of the sale proceeds.   To obtain a temporary injunction, the moving party must demonstrate (1) that he will suffer irreparable harm without an injunction, (2) that he has no adequate remedy at ...

Robert Rauschenberg Foundation v. Grutman , --- So.2d --- (Fla. 2d DCA 2016) In this decision, the Court considered which methodology to apply when calculating trustee fees.  The beneficiary of the trust, a charitable foundation, argued that the trustee fees should be calculated using the lodestar method set forth in Florida Patient's Compensation Fund v. Rowe , 472 So.2d 1145.  The trustees argued that their fees should be calculated based on the factors set forth in West Coast Hospital Ass'n v. Florida National Bank of Jacksonville, 100 So.2d 807 (Fla. 1958).   The Court reviewed the history of the two methods and ultimately determined that the West Coast  factors should be used to calculate trustee fees, not the lodestar method described in Lowe.    As a review, the West Coast factors include: the amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing l...

In re Guardianship of Hawley , 188 So.2d 882 (Fla. 2d DCA 2016), 2016 WL 66700 In this appeal, the Court reviewed a trial court order removing a trustee and limited guardian of the person of a ward.  The Court held that while the trial court had the authority to enter the order pursuant to F.S. 744.1075(4)(b), where it found that such action was necessary to protect the physical or mental healthy or property of the ward, upon the entering the order the court was also required to comply with F.S. 744.1075(4)(a), which requires the court to issue an order to show cause stating the essential facts constituting the conduct charged and requiring the respondent to appear before the court to show cause why the court should not take further action.