Rubin on Probate Litigation

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 ...

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...

Campbell v. Chitty , 131 So.3d 9 (Fla. 1st DCA 2012) This case involved an appeal of a trial court order imposing monetary sanctions on a trustee of several trusts for breach of fiduciary duty.  The Appellate Court remanded for two reasons: (1) The trusts had an indemnification clause which indemnified the trustee unless her actions were negligent and the trial court did not make a finding of negligence, and (2) The judgments against the trustee required her to both repay the trusts and  have her share of the trusts be set off by the same amount, which was essentially double recovery.

McCormick v. Cox , 38 Fla. L. Weekly D1723b (Fla. 3d DCA 2103): Here, McCormick, an attorney, prepared two trusts which owned a single asset- 100 acres in Massachusetts. At the time of the decedent/settlor's death, the property operated as a nine-hole golf course.  Following the decedent's death, McCormick arranged for an appraisal of the property as of his date of death.  The appraiser reported a fair market value of the property, as an operating golf course, of $2,500,000.  McCormick's billing records indicated that almost immediately McCormick began work to convert the property from a golf course to residential property.  Yet the appraisal he used on the decedent's estate tax return did not reflect this "highest and best use" of the property, nor did McCormick communicate with the beneficiaries about the value. The property ultimately sold to the Town of Lynnfield for $12,000,000.  To avoid capital gain tax, McCormick structured a like-kind exchange un...

Estate of Kester v. Rocco , 38 Fla. L. Weekly D1387a, 2013 WL 3155849 This case involved an interesting discussion of what evidence an appellate court believes is appropriate to consider in cases of undue influence and lack of capacity.  Here, unlike most of these cases that involve challenges to the estate planning documents themselves, two of the decedent's five children challenged the inventory of estate assets filed by one of their siblings, the personal representative of their mother's estate.  The sister neglected to list several financial accounts that were payable on death or joint accounts with right of survivorship, on which the sister and two other siblings were listed as beneficiaries.  The trial court found that the sister had exercised undue influence over the mother, had breached her fiduciary duties to the estate, and took possession of the accounts in question as a constructive trustee rather than a beneficiary. The Appellate Court found the...