Rubin on Probate Litigation

Stuart v. Ryan , 232 So.3d 418 (Fla. 4th DCA 2017) This decision is a nice review of the availability of exceptions to Florida homestead creditor protection.  Despite the fact that the discussion about exceptions to homestead being dicta,  because the property in question was determined to not be homestead property, the decision provides a summary of the status of the law in this area. The Florida Constitution lists only three exceptions to our homestead creditor protection: (1) government entities with a tax lien or assessment on the property; (2) banks or other lenders with a mortgage on the property which originated from the purchase of the property; and (3) creditors with liens on the property which originated from work or repair performed on the property.  The Court acknowledged that the Florida Supreme Court had recently recognized a fourth exception for alimony creditors, and that other Florida courts had found other exceptions for specific factually disti...

Flanzer v. Kaplan , 230 So.3d 960 (Fla. 2d DCA 2017) The Court here considered when a party must bring an action to challenge the validity of a trust purportedly procured by undue influence.  While the Florida Trust Code prescribes when a challenge to the validity of a trust may be started (when it becomes irrevocable or upon the settlor's death), the Trust Code does not specify a limitations period for challenging the Trust.  As a result, we must look to the general rules for limitations contained in Chapter 95.   In this situation, the daughter of the settlors of an irrevocable trust tried to challenge that irrevocable trust as the product of undue influence.  The trustees of the trust argued that her challenge was time barred because more than four years had passed since the trust had been created.  The daughter argued that the delayed discovery doctrine should apply, because undue influence is considered a "species of fraud."  The delayed ...

In re Guardianship of Bloom , 227 So.3d 165 (Fla. 2d DCA 2017) While this decision involved a lengthy description of prior litigation among the various competing parties in this guardianship, and ultimately trust and estate dispute, the takeaway of the decision is simple.  The Court noted an ambiguity in F.S. 736.1005 regarding when notice must be given of an application for attorney's fees, and held that, "an applicant for attorney's fees under section 736.1005 must serve an application for attorney's fees to the parties identified in the statute contemporaneously  with the filing of the application with the court" (emphasis added).

Sarfaty v. M.S. , --- So. 3d --- (Fla. 3d DCA 2017) In this guardianship decision, the Court considered how strictly to interpret F.S. 744.331 and FPR 5.550, dealing with the required procedures following the filing of a petition to determine incapacity. It held in situations like this one, where the procedural deficiencies were a result of actions of the parties and occurred with everyone's knowledge, such deficiencies are not enough to result in a dismissal of the petition without leave to amend. The alleged deficiencies were twofold.  First, counsel for the AIP argued that the petition should be dismissed because of the alleged failure of court-appointed counsel to read the petition and form notice to the AIP.  Second, counsel argued that the petition should be dismissed because the examining committee members did not file their reports within the fifteen day period required by F.S. 744.331(3)(e).  The trial court dismissed the petition and ruled orally that a...

Hernandez v. Hernandez , 230 So.3d 119 (Fla. 3d DCA 2017) In guardianship cases, the probate court has discretion to determine who is an "interested person" in a particular proceeding based on the particular purpose of, and the matter involved in, that proceeding. In this proceeding relating to the payment of attorney's fees from a Ward's assets, the Ward's son alleged that he had standing as an interested person to object to the payment of those fees.   The attorney's fees being sought in this case generated from the following proceedings: (1) After one of the Ward's sons allegedly mistreated her, her other son petitioned to be appointed as her plenary guardian, to which the first son objected. (2) Once the second son was appointed as plenary guardian for his mother, he engaged in an adversary proceeding against the first brother and his family for mistreating the mother. (3) The second son, as guardian, petitioned to sell the Ward's pr...

Winslow v. Deck , 225 Fla.2d DCA 276 (Fla. 4th DCA 2017) This decision centers on technical pleading requirements and a trial court's unwillingness to allow a party to amend their pleading to comply with those rules.  Specifically, this decision deals with the dismissal of a counterpetition for administration as untimely pursuant to F.S. 733.212(8), which gives interested persons 3 months to contest the validity of a will, among other things.  The Court reversed the trial court's dismissal. The decedent in this case left two competing wills- one leaving his assets to his two children, the other leaving his assets to his friend.  His daughter petitioned to have the first will admitted to probate and was appointed as personal representative.  Later, the friend filed the second will, with an emergency petition to revoke the daughter's letters of administration, a counterpetition for administration, an objection to the daughter's petition for appointment as pers...

Sudman v. O'Brien , 218 So.3d 986 (Fla. 2d DCA 2017), 2017 WL 1829479 This result in this decision should serve as a cautionary tale for all parties involved in litigation - the failure to properly respond to a request for admission will be treated as a deemed admission pursuant to Florida Rule of Civil Procedure 1.370(a), which could completely alter the disposition of a case.  Here, the surviving spouse sought to take her elective share from her husband's estate.  The trustee of her husband's trust objected to her election, and served a request for admission on the wife asking her to admit that she executed a prenuptial agreement with the decedent prior to her marriage.  The wife did not respond.  As a result, the trial court held that the request was deemed admitted, and granted the trustee's objection to her election to take the elective share. The Appellate Court upheld the trial court's decision.  It explained that Florida Rule of Civil Procedure ...

U.S. Sugar Corp. v. Estate of Mullins , 211 So.3d 110 (Fla. 4th DCA 2017) This decision deals with an estate's attempt to seek discovery from a non-party to the probate action.  In this instance, the non-party is the entity which owns the location on which the decedent died.  The estate served a subpoena duces tecum upon the non-party seeking documents relating to its investigation of the fatal accident which killed the decedent.  The Court held as follows: (1) The discovery sought information not reasonably calculated to lead to the discovery of admissible evidence in the probate proceeding .  At the time of serving the discovery, the estate had not filed a wrongful death action.  Because the underlying probate petition was devoid of any allegations upon which to premise discovery upon the non-party, the Court agreed with the non-party that the subpoena was nothing more than a fishing expedition seeking information which might give rise to a potential ...

William Cross, as Trustee of the Perl Donohue Cross Revocable Trust and as Trustee of the Charles William Cross Revocable Trust v. Annette Cross Caito, et al. ,  Case No.: 502015CP001572XXXXMB    (Fla.Cir.Ct.) (Trial Order) This decision raises a host of trust administration questions regarding claims of breach of fiduciary duty.  While the specific breaches at issue in this case were very fact specific, the Trial Court's findings are useful in a variety of trust administration contexts:  A. Statute of Limitations           (1)   Trust limitation notices :   The first question the Court dealt with was the adequacy of certain trust limitation notices to bind a beneficiary to a six-month statute of limitations as opposed to a four-year statute of limitations.  The Court held that a specific reference to the six-month statute of limitations is required by F.S. 736.1008.  Without such a reference, the sta...

Bryan v. Fernald , --- So.3d --- (Fla. 2d DCA 2017) In determining the beneficiaries of an estate, can a probate judge rely on a factual finding made by a judge in a medical malpractice case?  Here, where there was a question about the validity of the decedent's marriage at the time of her death, which would alter the determination of her intestate heirs, the Court held that the doctrine of res judicata did not apply, because in a probate action to determine beneficiaries and a medical malpractice suit, the things sued for and the causes of action are different.  

MonarchCare, Inc. v. Guardianship of Block , 204 So.3d 508 (Fla. 4th DCA 2016) In what seems to be a growing trend of appellate decisions involving guardianship fees, this decision involves a trial court's decision to reduce a professional guardian's hourly rate. Here, a professional guardian and an individual served as co-guardians of a ward.  The professional guardian billed at its standard hourly rate of $95 per hour, while the individual co-guardian billed at a rate of about $45-$50 per hour.  At an earlier hearing, the trial court granted a pending fee request for $95 per hour for the professional guardian, but prospectively capped both guardians fees at $45 per hour. Subsequent to the entry of that order, a new judge took over the case, and the professional guardian made another request for its fees at $95 per hour.  Following an evidentiary hearing, the new judge reduced the professional guardian's rate to $45 per hour.  The professional guardian appe...

In re Guardianship of Beck , 204 So.3d 143 (Fla. 2d DCA 2016) In this decision, the Court considered whether F.S. 744.108(1) authorizes an award of fees and costs incurred by counsel for an emergency temporary guardian and counsel for a ward who was the subject of an emergency temporary guardianship when there was no later determination that the ward was actually incapacitated, and no guardian was appointed.  In this instance, an emergency temporary guardian was appointed, but the ward passed away before any determination of incapacity was made.   Counsel for the petitioner, the emergency temporary guardian and the alleged incapacitated person all sought reimbursement of their fees and costs.  The trial court held that F.S. 744.108(1) did not permit an award of fees and costs before a guardian over the ward is appointed.  The Appellate Court reversed. (1) Fees and costs of attorney for emergency temporary guardian.  The Court first held that the at...

Rose v. Sonson , 208 So.3d 136 (Fla. 3d DCA 2016) This decision deals with the ability of a child born out of wedlock to establish paternity in his putative father's intestate estate.  The result turned on an analysis of the history of paternity proceedings within the probate context.  Between the petitioner's birth in 1964 and 1986, only the mother of a child born out of wedlock could bring suit to establish paternity.  In 1986, F.S. 742.11 was changed to allow both putative children and fathers to bring suit to establish paternity and at the same time, F.S. 95.11(3)(b) was amended to impose a four year limit, running from the date the child reached the age of majority, to bring such an action.  In 2009, the four year statute of limitations was removed from F.S. 742.11 by way of an amendment to F.S. 732.108(2)(b), expressly eliminating the application of F.S.95.11(3)(b) to paternity adjudications when determining intestate succession in a probate ...

Hilgendorf v. Estate of Coleman  201 So.3d 1262 (Fla. 4th DCA 2016) Can an estate or a beneficiary of a revocable trust compel the trustee to render an accounting of receipts and disbursements made during the life of the decedent? The Court held that here, where the trust did not contain a provision requiring accountings during the decedent's life and the decedent did not request accountings during her life, the trustee had no duty to account while the trust was revocable. Prior to the enactment of F.S. 736.0603, which provides that while a trust is revocable, the duties of the trustee are owed exclusively to the settlor, the law in Florida provided that a trustee owed duties to the settlor/beneficiary of a revocable trust and not to contingent beneficiaries.  Only once the trust becomes irrevocable at the death of the settlor may a beneficiary sue for breach of a duty that the trustee owed which was breached during the decedent's lifetime.  However, the Court fo...