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...

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...

Peck v. Peck , 133 So.3d 587 (Fla. 2d DCA 2014) When attempting to modify or terminate an irrevocable trust, most trust attorneys will first run through the litany of available statutory methods of modification provided to us in the Florida Trust Code (for a review, click  here ).  If none of the statutory methods work in a given situation, most attorneys will rely on the common law to modify an irrevocable trust.   The Court in this case upheld a lower court decision allowing modification of an irrevocable trust under the common law.  The trust being modified came about because the settlor's father's will devised the residuary of his estate to two trusts established by his children for their own benefit.  The daughter's trust was settled by the daughter, was irrevocable and named the daughter and her brother as co-trustees. Twenty years after the trust was established, the daughter filed a petition to terminate the trust and her children agreed to the t...

Dennis v. Kline , 3d DCA, June 19, 2013, 120 So. 3d. 11, 2013 WL 3014115 This case involves a beneficiary of a trust who adopted a 27-year old woman, which impacted who would inherit under a trust created by the beneficiary's father.  In simple terms, the trust involved both a Marital Trust and a Family Trust, which was further divided into Family Trust A and Family Trust B.  While Family Trust B granted the settlor's children the ability to appoint the assets in his or her trust share, Family Trust A constrained the distribution of each child's share to the Settlor's "issue."  The Trust (and the Settlor's will) defined "issue" as "lineal descendants forever," with the provision that "words of relationship in any degree includ[e] legally adopted persons."   One of the beneficiary's siblings sought a declaratory judgment that would construe the Trust to exclude adult adoptees from becoming qualified beneficiaries as...