Rubin on Probate Litigation

Senopoulos v. Senopoulos , 253 So.3d 1228 (Fla. 1st DCA 2018) A probate court has the inherent authority to evaluate a person's fitness to serve as personal representative. However, in order to appoint a personal representative based on something other than that personal representative's entitlement under the statute, the trial court has to actually make a finding about the person's fitness to serve.   Here, the decedent and his spouse were married just four days before the decedent died. The decedent's father sought to be appointed as personal representative of the estate, alleging foul-play by the surviving spouse in the death of his son. The wife objected and asserted her right to serve as the surviving spouse. The court ultimately entered an order appointing the father, stating that the father was "entitled to" appointment as the "nearest heir of the Decedent willing to serve as personal representative." The Court reversed the order ...

Gordon v. Fishman , 253 So.3d 1218 (Fla. 2d DCA 2018) Under current Florida law, the provisions of a decedent's will that impact the former spouse of that person become void upon divorce. But what happens when the decedent's will is prepared before  the marriage (which ultimately ended in divorce)?  Here, the Court found that the language of F.S. 732.507(2) unambiguously requires that the person be married at the time of executing the will. Thus, a will executed before the marriage, leaving assets to the decedent's then-fiance, who he subsequently married and then divorced, are not subject to F.S. 732.507(2).  F.S. 732.507(2) reads as follows: Any provision of a will executed by a married person  that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had ...

Baden v. Baden, et al , --- So.3d --- (Fla. 2d DCA 2018) Ordinarily, a plaintiff may voluntarily dismiss his or her action pursuant to FRCP 1.420(a)(1) at any time before a hearing on motion for summary judgment. In this case, the Plaintiff tried to dismiss certain trust litigation subsequent to a settlement agreement, but the trial court refused to grant his dismissal and attempted to retain jurisdiction over the subject trust. Ultimately, the Court found that the trial court erred and had no basis for not accepting the Plaintiff's voluntary dismissal. The Defendants had two arguments about why the voluntary dismissal should be rejected. First, they argued that F.S. 736.0201 gives the trial court discretion to maintain ongoing jurisdiction over trust actions and that jurisdiction applied here where a prior court order had been entered authorizing the court to retain jurisdiction over the trust as part of a settlement. The Court disagreed. It found F.S. 736.0201 unambiguou...

Johnson v. Townsend , 259 So.3d 851 (Fla. 4th DCA 2018) This is an interesting decision about the intersection of community property law and Florida probate claims. The decision centers around whether a surviving spouse who is claiming an interest in purported community property must file a timely claim against the estate. The Court held that such a claim is  a claim under the Florida Probate Code and that no exceptions exist to usurp the time deadlines for filing a claim in these types of proceedings. Prior to the decedent's death, he acquired property with his wife while domiciled in Texas, a community property state. The property was titled solely in the decedent's name. Following the decedent's death, and after more than 3 months had passed since the notice to creditors was published and over two years had passed since the decedent's date of death, the wife filed a "Petition to Determine and Perfect Surviving Spouse's Community Property Interest in...

Wallace v. Watkins , 253 So.3d 1204 (Fla. 5th DCA 2018) In this decision, the Court considered, among other things, the applicability of the 2 year non-claim period to actions brought to determine the beneficial interest of heirs. Years after an order of summary administration was entered, purported heirs of the decedent petitioned to reopen the summary administration because they argued they should have received notice of the petition for summary administration since they were easily ascertainable known heirs of the decedent. The beneficiaries of the order of summary administration argued that the petition to reopen was time barred because it had been over 2 years since the order of summary administration was entered.  The Court held that Florida's nonclaim statute, F.S. 733.710(1) only applies to claims brought against the estate by creditors, and that it does not apply to the beneficial interest of heirs. It noted that the summary administration statute, F.S. 735.206, fu...

Calderon v. Vazquez , 251 So.3d 303 (Fla. 3d DCA 2018) In this decision, the Court considered whether a beneficiary made sufficient allegations regarding the proceeds of a life insurance policy in order to survive a motion to dismiss. In reversing the trial court's dismissal, it found that there was enough evidence to proceed on the beneficiary's complaint. The beneficiary alleged that his father, the decedent, had a life insurance policy of which he named his brother as the sole beneficiary. Purportedly, he had made it clear to his brother that he wanted his brother to hold the proceeds of the policy in trust for his wife and son for their education and living expenses. The father also left a Bolivian will in which he stated that his wife and son were the beneficiaries of the policy. Following the decedent's death, the uncle used some of the proceeds for the beneficiary's education and living expenses, but then refused to give the beneficiary the balance for h...

Dixon v. Bellamy , 252 So.3d 349 (Fla. 4d DCA 2018) This decision clarifies the statute of limitations for determining paternity for purposes of intestacy in a probate proceeding. Prior to 2009, there was a four year statute of limitations from a person's 18th birthday to bring a proceeding to determine paternity. In 2009, F.S. 732.108 was amended to eliminate the four year statute of limitations imposed by F.S. 95.11(3) on paternity determinations in a probate proceeding to determine intestate succession going forward. Because there is no explicit language in the amended statute creating a new cause of action, the Court held that all causes of action accruing before the statute was amended are subject to the four year statute of limitations.

Crescenzo v. Simpson , 239 So.3d 213 (Fla. 2d DCA 2018) Can a court entertain a challenge to a will if that challenge was contained in a document other  than a caveat? Here, where the challenging party filed an answer to a petition for administration which contained affirmative defenses disputing the validity of the will and objecting to the appointment of the personal representative, the Court held that the challenges did not have to be contained in a caveat under FPR 5.260 to be addressed by the court. F.S. 733.110 says that any interested person who is concerned that an estate will be administered or a will admitted to probate without his or her knowledge may file a caveat with the court.  At that point, the probate court cannot admit the will to probate or appoint a personal representative until that challenge is resolved.  FPR 5.260 provides the procedural requirements for filing a caveat- it must include the name of the decedent, the last 4 digits of the de...

Rachins v. Minassian , 251 So. 3d 919 (Fla. 4th DCA 2018) Subsequent to the Minassian v. Rachins  decision, described here , the Court was once again faced with the interpretation of the Zaven Minassian Trust Agreement.  This time, the issue was whether the decedent's children had standing to contest the surviving spouse's administration of a trust for their benefit, where the terms of the trust provide that upon the spouse's death, the trust terminates, and the remaining assets are distributed to new trusts for the children's benefit. The Court found that the children are both beneficiaries and qualified beneficiaries of the trust. They are beneficiaries, because they have a future beneficial interest in the trust, since any remaining property will be disbursed to a new trust for their benefit.  It held that the fact that the remaining property would flow to a new trust for their benefit instead of outright did not preclude them from being beneficiaries under F...

Mulvey v. Stephens , 250 So.3d 106 (Fla. 4th DCA 2018) In this typical fact pattern, a child from the decedent's first marriage, following a failed attempt to have the decedent's estate planning documents overturned, brought an action against the decedent's second spouse for tortious interference. While she prevailed at trial, the Court overturned the judgment because there was no competent evidence to support a claim for tortious interference with an expectancy. A claim for tortious interference of a testamentary expectancy requires: (1) the existence of an expectancy, (2) intentional interference with the expectancy through tortious conduct, (3) causation and (4) damages. The claim should only be brought, "if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court." Here, after a failed will contest, the daughter brought a tortious interference claim against the decedent's second spouse based ...

By Jenna G. Rubin and Charles D. Rubin EXECUTIVE SUMMARY: An income beneficiary of a trust and the trust remaindermen were unable to successfully commute and terminate a trust. FACTS: A revocable trust became irrevocable at the death of the settlor. The settlor provided for an income interest for her son for his life, with the remainder to pass to three educational institutions at the son’s later death. The son and the remaindermen entered into an agreement to terminate the trust, and divide the $3 million of trust assets between them based on their actuarial interests. The trustee of the trust was not a party to the agreement, and did not agree to the early termination. The son filed a complaint against the trustee to terminate the trust in accordance with the agreement, citing  Fla.Stats. §§736.04113 and 736.04115. Fla.Stats . §736.04113 allows for judicial modification of an irrevocable trust on petition of a trustee or a qualified beneficiary if: (a) the purposes...

Webb v. Blue , 243 So.3d 1054 (Fla. 1st DCA 2018) In this 1st DCA decision, we get another refresher on some aspects of Florida's homestead law. Namely, this decision gets into the issue of how to validly devise homestead property to a non-heir, when the decedent is survived by heirs (but not a spouse or minor children). The decedent here was survived by no spouse and no minor children. He devised his "entire estate" to a friend, but did not specifically reference his homestead as part of the entire estate. Relatives of the decedent filed a Petition to Determine Homestead Status, asserting that the property was the decedent's homestead and descended to the decedent's heirs since there was no specific intent in the will to pass the homestead property to the friend. The trial court denied the Petition, finding that because the decedent was not survived by a spouse or minor child, he could freely devise his homestead to anyone and the will was clear about his...

In re Guardianship of Jones , 243 So.3d 503 (Fla. 2nd DCA 2018) This decision construes the language in F.S. 744.312 regarding the appointment of an emergency temporary guardian who is a professional guardian as the permanent guardian of a ward. The Court construed the language of the statute and the findings of fact in the trial court order, and found that the requirements had been met for this emergency temporary guardian to stay on as permanent guardian for the ward. Specifically, F.S. 744.312(4)(b) provides as follows: "An emergency temporary guardian who is a professional guardian may not be appointed as permanent guardian of a ward unless one of the next of kin of the alleged incapacitated person or the ward requests that the professional guardian be appointed as permanent guardian. The court may waive the limitations of this paragraph if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special talent or s...

Dejesus v. A.M.J.R.K., Corp. , 255 So.3d 879 (Fla. 2d DCA 2018) In this 2nd DCA case, the Court considered whether the homestead exemption on real property could be held by a corporation.  It held that the homestead exemption does not inure to a person residing on property, where that property is solely owned by a corporation. As a refresher, Article X, section 4(a) of the Florida Constitution, provides as follows: "There shall be exempt from forced sale under process of any court, and no judgment, decree[,] or execution shall be a lien thereon, ... property owned by a natural person ." (emphasis added) The Court held that the plain language of the Florida Constitution requires that the owner of property be a natural person in order to claim the homestead exemption.  The Court disagreed with the trial court's position that homestead status attached to the property because a natural person resided there. The trial court relied on Callava v.  Feinberg , 864...

Schlesinger v. Jacob , 240 So.3d 75 (Fla. 3d DCA 2018) In this decision, the 3rd DCA adopts the requirement that an attorney's services must benefit a ward or the ward's estate in order to be entitled to fees. The Court focuses on the different standards under the statutes to determine entitlement  to fees, versus the standard to determine amount and reasonableness of fees .  On one hand, F.S. 744.108(1) governs entitlement to fees, and provides: A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. Case law construing this section has uniformly added in the requirement that the services must benefit the ward or the ward's estate, despite the fact that the word "benefit" appears nowhere in the statute. On the other hand, F.S. 744.108(2) deals with the amount and reasonableness o...

Prewitt v. Kimmons , 237 So.3d 1158 (Fla. 5th DCA 2018) This decision rested on whether sufficient questions of fact were raised to preclude summary judgment regarding claims of breaches of fiduciary duty.  The beneficiary of an irrevocable trust sued her sister, one of the successor trustees, for breach of fiduciary duty, alleging that she had failed to distribute funds as provided for by the trust documents, failed to seek the return of $10,000 of trust assets wrongly retained by another of the successor trustees, and failed to return monies that she had purportedly misappropriated from the trust account prior to the settlor's death.  The Court held that questions of fact remained over the breach of fiduciary duty claim, where: (1) there was record evidence that the trustee had paid lease payments on a car that was ultimately conveyed to a beneficiary in contravention of the terms of the trust, (2) there was record evidence that the other successor trustee had received ...

Smith v. Smith , 232 So.3d 509 (Fla. 1st DCA 2017) This decision involves the question of whether a prenuptial agreement precluded the surviving spouse from seeking the removal of the co-personal representatives of the decedent spouse's estate.  The prenuptial agreement in question provided that the surviving spouse would "refrain from any action or proceeding to void or nullify to any extent the terms of any last will and testament or trust or testamentary substitute."   The co-personal representatives argued that the above provision prevented the surviving spouse from seeking their removal. The spouse argued that the provision did not affect her rights she later acquired through subsequently executed estate planning documents, and that the waiver provisions did not extend to the interest she acquired in her husband's estate when she was named an income beneficiary of the marital trust created under the terms of his last will executed after the marital agree...

Boren v. Rogers , 243 So.3d 448 (Fla. 5th DCA 2018) Writs of certiori are rarely available in discovery disputes, because in most cases, the harm caused by an improper ruling on discovery can be corrected on appeal.  Here, however, the trial court denied the plaintiff the ability to conduct discovery about a decedent's prior estate planning documents.  Her entire argument was based on the idea that she was a beneficiary of these prior estate planning documents, and therefore she had standing to contest certain newer documents that she believed were the product of undue influence. Because the trial court simply granted the defendant's motion for protective order, without making a finding of good cause that the discovery not be had, the Court granted the petition for writ of certiori and quashed the protective order. It noted that the trial court's order was insufficient because the document request was seeking items that could be admissible at trial and were reasonably ...

Cohen v. Shushan , --- So.3d --- (Fla. 2d DCA 2017) In Florida, a "surviving spouse" receives certain benefits- they can take an intestate share of the deceased spouse's estate and they may also be entitled to an elective share, family allowance, homestead and so on. Under principles of comity, Florida courts will recognize the marriage of citizens of a foreign country if that marriage was valid under foreign law.  Here, a surviving child of a decedent and a purported spouse of the decedent disagreed regarding whether a marriage would be deemed valid under Israel law, and as a result whether the marriage should be recognized by the Florida Probate Court for inheritance purposes. After hearing expert testimony on Israeli law, the trial court held that because the surviving spouse would be considered the decedent's "reputed spouse" under Israeli law, she should take under Florida's intestacy law.  A "reputed spouse," translated from Hebr...

Landau v. Landau , 230 So.3d 127 (Fla. 3d DCA 2017) Normally, an injunction is considered to be a serious form of relief, and courts typically will not grant them unless a high burden is met.  Here, however, the Court upheld an injunction freezing trust assets, based on the probate court's "inherent jurisdiction" to protect the assets under its supervision. The Court held that in this case, where the Trustee, who was also a beneficiary of the trust, had been sued by a beneficiary for an accounting, breach of trust, and other causes of action, the Trustee's due process was not violated by an injunction order freezing the trust assets until the accounting was completed.