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.