Rubin on Probate Litigation

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 ...

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 ...

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...

Schlesinger v. Schlesinger , 186 So.3d 618 (Fla. 3d DCA 2016) This case involved a dispute between the former spouse and the widow of a decedent regarding the right of the widow (as co-personal representative of the decedent's estate) to discover personal bank records of the former spouse.  The widow argued that she needed the discovery in order to determine whether the decedent had violated the terms of their post-nuptial agreement by making gifts to his former spouse, and decreasing the portion of his estate which would pass to the widow.   The Court granted the former spouse's petition to quash the trial court's order denying her motion for protective order to bar discovery of her  banks' records.  It held that the widow, as co-personal representative, has the right to his  banks' records, which she could use to make the determination of whether improper gifts were made.  It also held that the discovery was premature, since no determination had ...