Rubin on Probate Litigation

Demircan v. Mikhaylov , --- So. 3d -- (Fla. 3d DCA 2020) This Third DCA case addresses several elements of Florida trust law, with a focus on the ability to modify an irrevocable trust under the Florida common law. It involved an irrevocable trust established by the settlor for the benefit of his children, which initially appointed an independent trustee and a third party with trustee removal powers. When disagreements arose between the settlor and the beneficiaries against the trustee and the third party, litigation ensued. Prior to the final hearing, the third party had appointed a new trustee to succeed the independent trustee. At the final hearing, the trial court allowed a modification of the trust noting the consent of the settlor and all beneficiaries of the trust. The Court first considered whether the new trustee had standing to appeal the modification of the trust.  It found that the new trustee had a sufficient stake in the controversy to seek judicial resolutio...

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...

Hernandez v. Hernandez , 230 So.3d 119 (Fla. 3d DCA 2017) In guardianship cases, the probate court has discretion to determine who is an "interested person" in a particular proceeding based on the particular purpose of, and the matter involved in, that proceeding. In this proceeding relating to the payment of attorney's fees from a Ward's assets, the Ward's son alleged that he had standing as an interested person to object to the payment of those fees.   The attorney's fees being sought in this case generated from the following proceedings: (1) After one of the Ward's sons allegedly mistreated her, her other son petitioned to be appointed as her plenary guardian, to which the first son objected. (2) Once the second son was appointed as plenary guardian for his mother, he engaged in an adversary proceeding against the first brother and his family for mistreating the mother. (3) The second son, as guardian, petitioned to sell the Ward's pr...

Rudolph v. Rosecan ,  154 So.3d 381  (Fla. 4th DCA 2014), 2014 WL 6674749 This decision deals with who is considered an "interested person" in a guardianship proceeding for purposes of objecting to a guardian's annual accounting.  Here, a father was appointed plenary guardian of his adult autistic son's person and property.  A parenting plan was incorporated into the order appointing the father as guardian, and that parenting plan provided for the father and mother to have shared decision making authority and information sharing rights with regard to their son.  It expressly provided that the father had ultimate authority to make decisions about his son's person, but did not address financial decisions. The father voluntarily provided the mother with copies of his annual guardianship accountings over the years, but eventually sought a court order declaring that the mother was not an interested person for purposes of the annual accounting.  The tria...

Minassian v. Rachins , 152 So.3d 719 (Fla. 4th DCA 2014), 2014 WL 6775269 This case turned on the ability of a trust protector to modify a trust instrument to effectuate the settlor's intent.  At the settlor's death, the trust at issue provided for a family trust for the benefit of the settlor's wife.  Upon the wife's death, the family trust terminated and the trust referred to the establishment of separate shares for the decedent's children.   The children filed a complaint against the wife, as trustee of the family trust, for breach of trust.  She responded by moving to dismiss their complaint because they lacked standing, since they were not beneficiaries of the family trust.  She took the position that upon her death, the family trust terminated, and new trusts were created, and thus the children were not beneficiaries of the family trust during her life.  The trial court disagreed, finding that the use of the word "shares" prevented the court...

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...

Lyons v. Lyons  155 So.3d 1179 (2014), 2014 WL 5460621 To understand this decision, I think it makes sense to first lie out the series of quit claim deeds that lead to the litigation: (1)  Husband and wife quit claim their homestead to wife alone. (2) Wife quitclaims the residence to a QPRT,  but husband does not sign quit claim deed. (3) Wife quit claims the residence to herself and her daughter. The trustees of the QPRT moved to set aside conveyance (3) on the grounds that the wife did not own the residence when she attempted to quit claim the residence to herself and her daughter.  The wife responded by arguing that conveyance (1) was void, since it was signed only by her and not her husband.  The trial court agreed with the wife. The Appellate Court reversed the trial court's decision, focusing on the fact that article X, section 4(c) of the Florida Constitution focuses on the conduct of the owner spouse (wife) and provides...

Gordon v. Kleinman , 120 So.3d 120,  2013 WL 4081027 (Fla. 4th DCA 2013): Florida Statutes § 733.109(1) provides that a proceeding to revoke probate of a will can be commenced by any interested person, including a beneficiary under a prior will.  The Probate Code defines an "interested person" as "any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved." Fla. Stat. § 731.201(23). To withstand a motion to dismiss, a petition for revocation of probate must do two things: (1) state the interest of the petitioner in the estate, and (2) present the facts constituting the grounds on which the revocation is demanded.  Fla. P. R. 5.270.  Petitioner here sought to revoke probate of a 2009 will.  She was a beneficiary of the decedent's 1983 will, but was not a beneficiary under any  subsequent  wills leading to the 2009 will.  Because she alleged that she was a beneficiary under the 1983 will, a...