Rubin on Probate Litigation

  White  v. Marks , --- So. 3d --- (Fla. 5th DCA 2021) This decision involves a strange set of facts under which a purported heir attempted to assert rights as a beneficiary and child of the decedent, even though she was neither the biological child of the decedent nor adopted by him. The decedent's will specifically provided that the decedent "intentionally made no provision under this will" for his "adopted daughter." This decision ultimately turned on whether (1) the statute of limitations to determine paternity had expired, and (2) whether certain writings were acknowledgements of paternity under F.S. 732.108(2).  Even though the purported heir was not the biological child of the decedent or adopted by him, his name was listed as her father on her birth certificate. Apparently, her mother was pregnant with her when she met the decedent, and he agreed to be listed on her birth certificate so that she could avoid the social stigma attached to an out-of-wedlock...

Wallace v. Watkins , 253 So.3d 1204 (Fla. 5th DCA 2018) In this decision, the Court considered, among other things, the applicability of the 2 year non-claim period to actions brought to determine the beneficial interest of heirs. Years after an order of summary administration was entered, purported heirs of the decedent petitioned to reopen the summary administration because they argued they should have received notice of the petition for summary administration since they were easily ascertainable known heirs of the decedent. The beneficiaries of the order of summary administration argued that the petition to reopen was time barred because it had been over 2 years since the order of summary administration was entered.  The Court held that Florida's nonclaim statute, F.S. 733.710(1) only applies to claims brought against the estate by creditors, and that it does not apply to the beneficial interest of heirs. It noted that the summary administration statute, F.S. 735.206, fu...

Dixon v. Bellamy , 252 So.3d 349 (Fla. 4d DCA 2018) This decision clarifies the statute of limitations for determining paternity for purposes of intestacy in a probate proceeding. Prior to 2009, there was a four year statute of limitations from a person's 18th birthday to bring a proceeding to determine paternity. In 2009, F.S. 732.108 was amended to eliminate the four year statute of limitations imposed by F.S. 95.11(3) on paternity determinations in a probate proceeding to determine intestate succession going forward. Because there is no explicit language in the amended statute creating a new cause of action, the Court held that all causes of action accruing before the statute was amended are subject to the four year statute of limitations.

Flanzer v. Kaplan , 230 So.3d 960 (Fla. 2d DCA 2017) The Court here considered when a party must bring an action to challenge the validity of a trust purportedly procured by undue influence.  While the Florida Trust Code prescribes when a challenge to the validity of a trust may be started (when it becomes irrevocable or upon the settlor's death), the Trust Code does not specify a limitations period for challenging the Trust.  As a result, we must look to the general rules for limitations contained in Chapter 95.   In this situation, the daughter of the settlors of an irrevocable trust tried to challenge that irrevocable trust as the product of undue influence.  The trustees of the trust argued that her challenge was time barred because more than four years had passed since the trust had been created.  The daughter argued that the delayed discovery doctrine should apply, because undue influence is considered a "species of fraud."  The delayed ...

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...

Rose v. Sonson , 208 So.3d 136 (Fla. 3d DCA 2016) This decision deals with the ability of a child born out of wedlock to establish paternity in his putative father's intestate estate.  The result turned on an analysis of the history of paternity proceedings within the probate context.  Between the petitioner's birth in 1964 and 1986, only the mother of a child born out of wedlock could bring suit to establish paternity.  In 1986, F.S. 742.11 was changed to allow both putative children and fathers to bring suit to establish paternity and at the same time, F.S. 95.11(3)(b) was amended to impose a four year limit, running from the date the child reached the age of majority, to bring such an action.  In 2009, the four year statute of limitations was removed from F.S. 742.11 by way of an amendment to F.S. 732.108(2)(b), expressly eliminating the application of F.S.95.11(3)(b) to paternity adjudications when determining intestate succession in a probate ...

Woodward v. Woodward , 192 So.3d 528 (Fla. 4th DCA 2016) This decision deals with whether res judicata and laches barred a beneficiary's claim against a trustee.  The Court held that neither applied, since the beneficiary's two claims against the trustee did not contain identity of the causes of action, and because the beneficiary did not know about the trustee's actions until he was served with an accounting. In 1996, the beneficiary of the Trust at issue filed suit against the trustee for breach of fiduciary duty, alleging that the trustee failed to account, improperly mortgaged real property and improperly paid expenses of the trust.  During the pendency of the action, the trustee transferred the Trust's assets to two new trusts and terminated the Trust at issue.  The trial court eventually dismissed this complaint. In 2011, the trustee served an accounting for the Trust, and the two new trusts, on the beneficiary.  The accounting showed the terminati...