Rubin on Probate Litigation

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 ...

Smith v. Smith , 199 So.3d 911 (Fla. 4th DCA 2016) This decision deals with the question of whether a ward's right to marry is subject to court approval during a guardianship proceeding.   Florida Statutes § 744.3215(2)(a) provides: (2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right: (a) To marry.  If the right to enter into a contract has been removed, the right to marry is subject to court approval.   The Court held that the plain language of the statute does not state that a "marriage" is subject to court approval, but instead that the "right to marry" is subject to court approval.  Therefore, it held that if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.

In re Guardianship of Mount , 189 So.3d 213 (Fla. 2d DCA 2016) In this short opinion, the Court was asked to consider whether a guardianship court could compel the co-trustees of a ward's revocable trust to return assets to the guardianship.  The Court held that unless an action was commenced by the guardianship against the co-trustees, the Ward's beneficial interest in the trust did not give the guardianship court the authority to override the decisions of the co-trustees in the management of the trust.  

Gort v. Gort , --- So.3d --- (Fla. 4th DCA 2016) In this decision, the Court considered, among other things, whether a petition to determine incapacity may be voluntarily dismissed.  The statutes governing guardianship do not expressly address this issue.  The statute states that once a petition is filed, the court shall set  the matter for hearing within certain time constraints.  F.S. 744.331.  It also states that a court shall dismiss  a petition if the examining committee members conclude the person is not incapacitated.  But the Court found that the statute is silent on whether a court is required to hold an adjudicatory hearing every time a petition is filed, and is silent on whether a party may voluntarily dismiss a petition to determine incapacity. The Court found that the Jasser v. Saadeh  decision, 97 So.3d 241 (Fla. 4th DCA 2012) was distinguishable from this case.  In Jasser , the court distinguished a voluntary dismissa...

Blackburn v. Boulis , 184 So.2d 565 (Fla. 4th DCA 2016) This appeal centers around two distinct issues with regard to a surviving spouse's elective share: (1) first, whether a court can direct the payment of interest on a portion of the elective share amount, and (2) whether attorney's fees can be charged against the elective share. Interest on elective share: The probate court ordered that the spouse was entitled to interest at the statutory interest rate on forty percent of the elective share amount, from the date of the order determining the value of the spouse's minimum elective share.  The Court held that it would be inequitable for the spouse to be denied the opportunity to a reasonable return on her elective share, and that it would likewise be inequitable for the spouse to enjoy a windfall of interest on a portion of the value of the elective share, which due to taxes, she would not be entitled to retain (since the elective share must bear its own taxes...

Dowdy v. Dowdy , 182 So.3d 807 (Fla.2d DCA 2016) This decision centered around whether the construction of a trust could support the issuance of a temporary injunction directing the trustee to deposit proceeds of a property sale into the court registry pending the court's decision on the construction petition.   A husband and wife established a family trust which owned real estate.  Each had children from previous marriages.  Following the husband's death, the wife amended the trust to remove her husband's children as successor trustees and beneficiaries.  She then sold the trust property.  One of the husband's sons learned of the sale and filed a petition for construction of the original trust and a temporary injunction to compel preservation of the sale proceeds.   To obtain a temporary injunction, the moving party must demonstrate (1) that he will suffer irreparable harm without an injunction, (2) that he has no adequate remedy at ...

Robert Rauschenberg Foundation v. Grutman , --- So.2d --- (Fla. 2d DCA 2016) In this decision, the Court considered which methodology to apply when calculating trustee fees.  The beneficiary of the trust, a charitable foundation, argued that the trustee fees should be calculated using the lodestar method set forth in Florida Patient's Compensation Fund v. Rowe , 472 So.2d 1145.  The trustees argued that their fees should be calculated based on the factors set forth in West Coast Hospital Ass'n v. Florida National Bank of Jacksonville, 100 So.2d 807 (Fla. 1958).   The Court reviewed the history of the two methods and ultimately determined that the West Coast  factors should be used to calculate trustee fees, not the lodestar method described in Lowe.    As a review, the West Coast factors include: the amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing l...