Rubin on Probate Litigation

Lovest v. Mangiero , 279 So.3d 205 (Fla. 3d. DCA 2019) This decision illustrates some of the difficulties that arise when guardianship and estate proceedings intersect. Here, after the ward died, the guardian and then personal representative sought to pay some of the ward's creditors using artwork done by the decedent, an artist. One of the beneficiaries of the ward's estate objected, arguing that the guardianship court's orders violated her due process rights, the guardianship court lacked subject matter jurisdiction and the guardian should have provided proper accountings.  The Court held that the beneficiary's due process rights were not violated because notice  was sent to her of the petition to pay the debts with the artwork by certified mail (even though it was returned as undeliverable). It noted that FPR 5.060(a) allows an interested person who desires notice to file a written request for notice of further proceedings, which then allows the trial court

Reid v. Guardianship of Reid , 277 So.3d 1053 (Fla. 4th DCA 2019) It is well established that under Florida law, the most important aspect of guardianship law is the protection of the ward. This basic philosophy must be taken into consideration in all aspects of guardianship administration, including awards of attorney's fees. Accordingly, F.S. 744.108(2) provides the criteria that a court must consider in determining reasonable attorneys' fees in guardianship proceedings. The list of criteria includes the time and labor required, the novelty and difficulty of the questions involved and the skill required, the fee customarily charged, and the nature and value of the incapacitated person's property. Here, in determining a reasonable award of attorney's fees for an appellate lawyer in a guardianship proceeding, the trial court did not consider the nature and value of the guardianship assets (there were none). The Court held that by approving the reasonableness of

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, &quo

Wilson v. Wilson , 279 So.2d 160 (Fla. 4th DCA 2019) This decision deals with whether subsequent to executing a prenuptial agreement, language in a decedent's trust directing the trustee to set aside "as much property as is necessary to satisfy the Wife's elective share" constituted a modification of the prenuptial agreement such that the wife could then elect to take her elective share. The Court found that it did not. The prenuptial agreement contained a clear waiver of the elective share. It also provided that the agreement could only be modified in writing, signed by both parties. The agreement allowed the couple to make testamentary gifts to each other without invalidating the agreement.  Following the decedent's death, the wife filed a notice of election to take her elective share in accordance with the trust.  The Court held that the prenuptial agreement contained a clear and unambiguous waiver of the elective share. The creation of the trust d

Manor Oaks, Inc. v. Campbell , 276 So.3d 830 (Fla. 4th DCA 2019) It is not uncommon for a health care surrogate or an agent under a power of attorney to sign a nursing home admission form for an elderly family member who is unable to do so for himself. These admission forms may contain more than just health care related or financial related provisions, so it is important to consider the nature and the scope of the family member's authority in determining whether they can bind someone to all of the terms of the agreement. In this instance, the nursing home admission form contained a binding arbitration provision. The nursing home argued that because the form was signed by the decedent's sons as surrogates under a document entitled "Durable Power of Attorney Containing Health Care Surrogate Decisions," the decedent was bound by the arbitration clause. The Court found that an arbitration provision can be enforced if either: (1) the power of attorney makes a spec

Herman v. Bennett , 278 So.3d 178 (Fla. 1st DCA 2019) In the world of creditor's claims, the difference of just one day can make a world of difference. Here, a creditor filed their claim exactly 3 months and one day after the date of publication of the notice to creditors. The Court held that F.S. 733.702(1) is unambiguous- the three month limitations period begins to run on the date of the first publication of the notice to creditors. Florida Rule of Judicial Admin. 2.514, which provides for excluding the day of the event that triggers a time period when a statute does not specify a method of computing time is inapplicable here, because the statute clearly specifies the method for computing time. Thus, the claim was untimely and must be stricken. 

Wallace v. Comprehensive Personal Care Services, Inc. , 275 So.3d 782 (Fla. 3d DCA 2019) This decision highlights the disconnect between the Appellate Courts and the reality of practicing guardianship law. Here, prior to an incapacity proceeding, the court in a related trust matter entered a protective order dealing with the dissemination of medical records. Later, prior to filing for guardianship, the AIP's son sought an order from the court allowing him to attach those medical records to his petition to determine incapacity. The trial court denied his request. The Appellate Court affirmed, basing its analysis on the procedures set forth in Chapter 744. Apparently, the Court has a great deal of faith that the members of examining committees will abide by the provisions of Chapter 744. The Court seemed to feel that because the petitioner can outline the factual basis for their beliefs in their petition, can name the AIP's attending physician, and because F.S. 744.331 r

Mullins v. Mullins , --- So.3d --- (Fla. 5th DCA 2019) This decision deals with the effect of an order determining homestead on a beneficiary's interest in the homestead property. Specifically, the Court considered whether a consent to the entry of an order determining homestead, where that order does not properly lay out the ownership interests in the property, is enough to actually alter the parties ownership interests. The Court held that it did not. The decedent in question left her homestead to her three children, subject to a life estate for two of the three children for as long as they wanted to live there. The probate court entered an order determining homestead which stated that the homestead was devised in equal shares to the three children but failed to mention the life estates. The Court considered whether the homestead order in and of itself could eradicate the life estates. It held that because the consents to the homestead order were not formal agreements to

Kaminsky v. Hecht , 272 So.3d 786 (Fla. 4th DCA 2019) Does the Florida long-arm statute reach trustees of trusts administered elsewhere with beneficiaries in Florida? Committing a tortious act within the state is one of the enumerated acts which can give rise to jurisdiction for purposes of the long-arm statute. Fla. Stat. 48.193(1)a.2. While physical presence is not required to commit a tortious act for purposes of the long-arm statute, mere injury in Florida from a tortious act committed elsewhere is not enough. Here, the Court found that the trustee of a trust who had never resided in Florida, had not administered the trust in Florida and did not hold trust assets in Florida, but may have failed to account to Florida beneficiaries or mismanaged trust assets for Florida beneficiaries did not meet the requirements of the long-arm statute for the Florida court to have jurisdiction over the trustee.

Alexander v. Harris , --- So.3d --- (Fla. 2nd DCA 2019) In this 2nd DCA case, the Court once again considered the ability to garnish distributions from a trust for the enforcement of a child support order. It held that the distributions made to or for the benefit of the father from a discretionary special needs trust could be garnished for child support payments owed to a minor child. The trust in question was a special needs trust funded from the settlement of a product liability action. The father has no control over the trust, cannot compel the trustee to make distributions, and does not personally receive any disbursements from the trust because they are made directly to third parties. The mother argued that pursuant to F.S. 736.0503, the discretionary distributions are not protected from continuing garnishment for support payments.  As you may recall, in 1985, the Florida Supreme Court held in Bacardi v. White that a continuing writ of garnishment may attach to discr

Levine v. Stimmel , --- So.3d --- (Fla. 5th DCA 2019) Florida Statutes F.S. 736.1004 provides that in actions for breach of fiduciary duty or challenging a trustee's exercise (or nonexercise) of their powers, and in trust modification proceedings, the court may award fees as in chancery actions. Here, the Court considered whether F.S. 736.1004 allowed a party to recover fees after unsuccessfully litigating entitlement to fees under F.S. 57.105.  More specifically, in this instance a fiduciary sought fees under F.S. 736.1004 after successfully defending claims revolving around alleged breaches of fiduciary duty. Part of the fees she sought were those incurred pursuing an unsuccessful F.S. 57.105 motion. The Court held that because F.S. 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative ground for fees, the fees incurred litigating the entitlement to fees were not recoverable.

Romanoff v. Lazarus , 267 So.3d 33 (Fla. 4th DCA 2019) Failure to raise a defense of lack of personal jurisdiction at the right time can constitute a waiver of the defense altogether. The timing of the defense has to be exactly right or the defense will often be waived. Here, the defendant did not raise the defense in her first motion to dismiss, but did raise it in a second motion to dismiss which was filed before the court heard her first motion to dismiss. Lack of personal jurisdiction is a defense that must be raised at the first opportunity and before the defendant takes any steps in the proceeding which would constitute submission to the court's jurisdiction. However, a waiver will not occur if the initial motion is amended to include the defense before the motion is heard. The Court held that while an answer which fails to raise the defense may constitute a waiver of the defense, a motion to dismiss that fails to raise the defense and is amended before it is heard w

Jacobson v. Busko , 262 So.3d 238 This decision is a short and sweet reminder that once an order of incapacity is entered removing a ward's right to contract, that ward no longer has the ability to independently hire counsel for him or herself. Here, even though F.S. 744.3215(1)(l) gives the ward the right to counsel, the ward's right to contract was removed when the court ordered him incapacitated. At that point, only the guardian had the ability to hire counsel for the ward.

Bitezakis v. Bitezakis , 264 So.3d 297 (Fla. 2d DCA 2019) While it seems easy enough to execute a will, this case reminds us that a client's attempt to do so at home without the guidance of a lawyer may have serious unintended consequences if the will is not executed in strict compliance with the signature requirements of F.S. 732.502. Here, the decedent and two friends were in his home when first, two witnesses signed a purported will of the decedent, and subsequently, the decedent began to sign the will but stopped after signing just his first name after his wife instructed him to stop because a notary was not present. The next day, she took the decedent to a notary, where he mistakenly executed an affidavit of subscribing witness in the presence of a notary. The trial court found that because it was the testator's intent that the document be his will, the will should be admitted to probate. The Court reversed and found that because the will failed to conform to

Rizk v. Rizk , 260 So.3d 467 (Fla. 3d DCA 2018) This decision centers around the ability of a beneficiary to challenge a will executed in another country even if they did not contest that will in the country where it was executed. Here, the will was purportedly executed in Haiti in accordance with Haitian law. The beneficiary tried to challenge the will in Florida, alleging that the decedent was not actually in Haiti on the day the will was purportedly signed, and that the witnesses did not sign the will on that date.  F.S. 732.502(2) provides that a nonresident's will will be treated as valid in Florida if the will is valid under the laws of the state or country where the will was executed. Because the beneficiary had not challenged the will's validity in Haiti and was receiving benefits from that will, the Court upheld the trial court's determination that the 2013 will was valid in Haiti.

Lee v. Lee , 263 So.3d 826 (Fla. 3d DCA 2019) This decision deals with the validity of a disclaimer executed by one of the decedent's daughters. Specifically, the Court considered whether the disclaimer was valid because it did not contain a legal description of the real property being disclaimed.  Disclaimers are governed by Chapter 739, the Florida Uniform Disclaimer of Property Interests Acts. A valid disclaimer must (1) be in writing, (2) declare that the writing is a disclaimer, (3) describe the interest or power disclaimed, (4) be signed by the person making the disclaimer, (5) be witnessed and acknowledged in the manner provided for by deeds of real estate and (6) be delivered in the manner provided by the statute. F.S. 739.104.  The statute provides additional requirements if the disclaimer is to be recorded, to provide constructive notice to those conducting a title search regarding real property being disclaimed. It states that a disclaimer "relating to

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a

Maldonado v. Buchsbaum , --- So.3d --- (Fla. 4th DCA 2018) In certain situations, it is possible to get a temporary injunction without notice, but a court should not do so without strictly complying with the rules governing injunctions. In this case, the surviving spouse sought a temporary injunction against the decedent's aide who had allegedly fostered a relationship with the decedent and alienated him from his spouse during life. Following his death, the wife sought to enjoin the aide from taking possession of estate assets, destroying financial documents or representing to others that she was the sole beneficiary of the estate or representative of the decedent.  The trial court issued the temporary injunction without notice to the aide based on spouse's argument that notice of the proceedings prior to the issuance of the injunction would afford the aide the opportunity to transfer assets out of the country. The Court found that the injunction was appropriate but th