Rubin on Probate Litigation

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.

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...

Brown v. Brown , 169 So.3d 286 (Fla. 4th DCA 2015), 2015 WL 4269921 This decision serves as a nice reminder about a court's jurisdiction over real property.  A circuit court in an estate proceeding cannot direct a personal representative to divide and distribute a decedent's real estate in another state, since the court lacks in rem  jurisdiction to order and partition the sale of that real property.  To properly partition out of state real property, a personal representative is required to open an ancillary action in that state.  F.S. 64.022.

Pitcher v. Waldo , --- So.3d ---, 2015 WL 1334341 This case involved a dispute between the parents of a deceased child over a jury award to the survivors in a wrongful death suit.  The jury awarded the mother $1,000,000 and the father $100,000, and the father claimed that since the mother and the father had an agreement to split the award 60/40, he was entitled to relief pursuant to F.S. 733.815, which allows interested persons to agree to alter their shares of property from an estate .  The Court held that since the survivor's claims are for the survivor's sole benefit, they do not become part of the estate, and thus the probate court had no jurisdiction to adjudicate the dispute.

Snider v. Metcalfe , 157 So.3d 422 (Fla. 4th DCA 2015), 2015 WL 444497 While part of a trust dispute, this case involved the procedural question of when one must raise a defense of lack of personal jurisdiction in a proceeding.  Here, the Court held that even though the trustee of the trust at issue did not assert her defense of lack of personal jurisdiction in her original motion to dismiss a beneficiary's complaint for breach of trust, because she raised it in a subsequent amended motion to dismiss, she did not waive the defense.  Interestingly, the Court held that neither filing a notice of intent to use trust funds to pay the trustee's attorney's fees nor the filing of two responses to discovery requests amounted to "submission to the court's jurisdiction" or requests for affirmative relief sufficient to waive the defense of lack of personal jurisdiction  The Court distinguished these facts from situations where the party asserting the defense obtaine...

Katke v. Bersche , 161 So.3d 574 (Fla. 5th DCA 2014), 2014 WL 6488688 In this contested guardianship, there were two petitions filed to determine the alleged incapacitated person's incapacity.  First, the AIP's daughter filed her petition and was appointed as ETG.  She subsequently resigned as ETG and an unrelated professional guardian applied and was appointed as ETG.  The AIP filed an emergency motion to set aside the order appointing both her daughter and the professional guardian as her ETG, which the trial court granted based on lack of service and notice to the AIP. The AIP next filed an emergency motion to dismiss her daughter's petition.  The daughter withdrew her petition.  Before the trial court heard the motion to dismiss, the professional guardian filed her petition in the same case number as the  daughter.  The AIP filed a motion to strike that petition and sought a writ of prohibition after the court determined that it could proc...

Bookman v. Davidson , --- So.3d --- (2014), 2014 WL 1772707 This case centered around the rights of a successor personal representative to (1) sue the attorney who represented the original personal representative for malpractice and (2) seek disgorgement of fees paid to that attorney in a separate civil case.  For purposes of discussion, the initial personal representative will be referred to as PR1 and her successor will be referred to as PR2.   PR1 served as personal representative of the estate for approximately 3 years. During those three years, she engaged the legal services of an attorney.  In total, the attorney received $195,000 in fees from the estate.   When PR2 was appointed as successor personal representative, he filed suit against both PR1 and her attorney, alleging that PR1, with her attorney's guidance, had improperly disclaimed or transferred assets out of the estate that could have been used to pay its creditors.  PR1 filed her aff...

Mack v. Polsby , --- So.3d --- (Fla. 3d DCA 2014), 2014 WL 54895 The dispute in this case centered around a revocable trust created by an emergency temporary guardian.  The ward, and eventual decedent, had four children.  After he suffered from a stroke and went into a coma, his daughter filed a petition seeking to be appointed as her father's emergency temporary guardian.  The court granted her petition, and also granted a later petition allowing her to create and fund a revocable trust.  Following the court's order allowing her to create the trust, the daughter funded the trust with her father's property in Michigan. When the father ultimately passed away, one of his sons was appointed personal representative of his estate in Michigan.  The son then filed a Complaint against his sister, which sought a declaration that the trust was invalid and that the sister breached her fiduciary duty as trustee and removal of the sister as trustee.  By the tim...

Perelman v. Perelman , 2013 WL 5807358 It is not uncommon here in South Florida for cases to arise that center around disputes about where the decedent was domiciled at their death, given how many retirees move here at the end of their lives.  This case centered around a will contest between a son, arguing that his mother was a domicile of Pennsylvania, and a husband, arguing that his wife was a domicile of Florida.   The issue on appeal centered around whether the Florida trial court should have stayed the Florida proceeding under the principle of priority.  The "principle of priority" is the idea that the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with this case.  It is not a mandatory principle, however absent extraordinary circumstances, it is an abuse of discretion to fail to respect the principle of priority. The Court explained that the exercise of jurisdiction by the foreign court will trigger priority...

Levya v. Daniels , 2013 WL 5313600 (11th Cir. 2013) It is not uncommon for probate and trust cases to involve beneficiaries in one or more jurisdictions and a fiduciary in another.  Here, the personal representative was a citizen of Texas but was acting as personal representative of a Florida estate.  Two of the beneficiaries sued the personal representative, one from Florida and the other from Colorado.  The beneficiaries argued that the district court had diversity jurisdiction, since they were citizens of Florida and Colorado, and the personal representative was a citizen of Texas.   The Court held that since the personal representative was being sued in his fiduciary capacity rather than his personal capacity, he was deemed a Florida citizen for purposes of the lawsuit. Thus, the district court properly dismissed the complaint for lack of diversity jurisdiction. 

Grasso v. Grasso , 113 So.3d 855 (Fla. 2d DCA 2012) A clever client/beneficiary will often quickly realize during trust litigation how little power he or she has to stop the trustee from doing certain actions while litigation is pending.  Often, the beneficiary will want to enjoin the trustee from performing those actions, such as disposing of trust assets, during the litigation, because they know that if they challenge the trustee's actions after  the fact, they will face an uphill, costly legal battle.  In this case, the trial court granted a settlor/beneficiary's request for a temporary injunction, and enjoined the trustees of the trust from disposing of trust assets.  The injunction was granted at the same time the trial court granted a motion to dismiss against the settlor/beneficiary for lack of personal and subject matter jurisdiction, with leave to amend.   The Appellate Court held that a grant of a motion to dismiss with leave to amend is not ...