Probate, Trust & Guardianship Litigation Blog

By: Glenn M. Mednick, Esquire

 

All Elements for an Injunction Must be Shown to be Granted and the Court Must Make the Requisite Findings

Posted on April 30, 2018

In Dubner v. Ferraro, 2018 Fla. App. LEXIS 4917 (Fla. 4th DCA April 2018), the Court addressed whether the order directing a non-party broker to remove its unilateral freeze of certain accounts was defective on its face for failing to include required findings and the posting of a bond, and whether the mandatory injunction was supported by the evidence. For temporary injunctive relief, a movant must demonstrate: (1) irreparable harm would result if the relief is not granted; (2) an adequate remedy at law is unavailable; (3) a substantial likelihood of success...

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Are Factual Findings of the Trial Court Enough Evidence to Support Reformation of a Will?

Posted on April 16, 2018

In Eisenpresser v. Koenig, 2018 Fla. App. LEXIS 2262 (Fla. 4th DCA 2018), the Court addressed whether factual findings of the trial court are supported by competent substantial evidence to support reformation of a will. Section 732.615 Fla. Stat., states “upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake...

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A Premarital Agreement Executed Before a Will and Codicil Does Apply to the Subsequent Documents

Posted on April 9, 2018

In Smith v. Smith, 232 So. 3d 509 (Fla. 1st DCA 2017), the Court addressed whether the waiver provisions in the premarital agreement extended to the later executed codicil and will. “A trial court's interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts.” Hahamovitch v. Hahamovitch, 174 So.3d 983, 986 (Fla. 2015) (quoting Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009)). “Contract interpretation begins with a review of the plain language of the agreement...

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Can a Mistake of Law Allow for Reformation of Trust Documents?

Posted on April 2, 2018

In Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2nd DCA 2017), the Court addressed whether an improperly executed trust amendment can be validated through reformation pursuant to Section 736.0415, Fla. Stat. A trust—or an amendment thereto—must be signed by the settlor in the presence of two attesting witnesses and those witnesses must also sign the trust or any amendments in the presence of the settlor and of each other. See Sections 736.0403(2)(b), Fla. Stat.; 732.502(1)(b)-(c), Fla. Stat. In Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002),...

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Should Trial Courts Prevent a Petitioner from Challenging a Will Because of a Technical Defect?

Posted on March 23, 2018

In Winslow v. Deck, 225 So. 3d 276 (Fla. 4th DCA 2017), the Court addressed whether the Appellant’s emergency petition satisfied the statutory requirements set forth in Section 733.212(3), Fla. Stat., and was within the applicable statute of limitations. Pursuant to Section 733.212(3), Fla. Stat., interested parties are barred from requesting the court to revoke the probate of a will if they fail to object to the validity of the will within three months of receiving notice. Fla. Prob. R. 5.020(a) states "[a]ll technical forms of pleadings...

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How are Attorney’s Fees in a Wrongful Death Calculated?

Posted on March 12, 2018

In Heiston v. Schwartz & Zonas, LLP, 221 So. 3d 1268 (Fla. 2nd DCA 2017), the Court addressed whether the personal representative’s attorneys should be awarded the entire contingency fee earned after the settlement of a wrongful death case. Section 768.26, Fla. Stat. states “attorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate...

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A Court Must Allow Time for Consideration of Timely Filed Objections to an Accounting or Petition for Discharge Prior to Entry of an Order of Discharge

Posted on February 25, 2018

n Unanue v. Johnson, 2017 Fla. App. LEXIS 19782 (FLA 2nd DCA 2017), the Court addressed the issue of whether the probate court improperly curtailed the time for objecting to the final accounting of the estate. Fla. Prob. R. 5.400(b)(6) asserts a petition for discharge must contain a statement that any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting; and also that within 90...

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Courts Must Make a Finding of Good Cause to Prevent Discovery of Documents that Are Reasonably Calculated to Lead to the Discovery of Admissible Evidence

Posted on February 21, 2018

In Boren v. Rogers, 2018 Fla. App. LEXIS 1347 (Fla. 5th DCA 2018), the Court addressed the issue of whether Petitioner, Ann Boren, was entitled to a review of the documents she requested from Thomas Rogers, Esquire, the purported Trustee of the Trusts at issue and also the attorney who prepared the trust documents . Fla. R. Civ. P. 1.280(b)(1) allows a party to obtain discovery regarding any non-privileged information that is relevant to the subject matter of the pending action and that would be admissible at trial or appears reasonably calculated to lead...

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Because Courts Treat Undue Influence as a Species of Fraud, Undue Influence is Subject to the Delayed Discovery Doctrine

Posted on February 13, 2018

In Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2nd DCA 2017), the Court addressed the issue of when a plaintiff must bring an undue influence claim when challenging a trust. The Florida Trust Code allows a plaintiff to challenge any portion of a trust procured by undue influence. Section 736.0406, Fla. Stat. (2017). An action, however, cannot commence until the trust becomes irrevocable either by its terms or by the settlor’s death. Section 736.0207(2), Fla. Stat. (2017).

In this case, the trust became...

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It is not Constitutionally Permissible for the Florida Legislature to Limit the Amount of Attorneys’ Fees Paid from a Guardianship Trust Established by a Legislative Claims Bill

Posted on October 9, 2017

In Grossman Roth, P.A. v. Mellen, 221 So.3d 683, (Fla. 4th DCA 2017), the District Court of Appeal, held that a claims bill’s limitation on the amount of attorneys’ fees paid from settlement unconstitutionally impaired the preexisting contract between the client and the law firm. After the legislature passed a legislative claims bill authorizing payment to the client who had settled a medical malpractice action against a hospital for $3 million but limited the law firm’s attorneys’ fees, the client brought an action for declaratory judgment seeking...

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