Probate, Trust & Guardianship Litigation Blog

By: Glenn M. Mednick, Esquire

 

THE SLAYER STATUTE DOES NOT PROHIBIT INHERITANCE BY HEIRS OF SLAYER, BUT THE WILL MAY STILL BE REVOKED WHERE THE SLAYER’S UNDUE INFLUENCE TAINTS THE ENTIRE INSTRUMENT

In Fiel v. Hoffman, 2015 Fla. App. LEXIS 11414 (Fla. 4th DCA 2015), the Fourth DCA dismissed a complaint alleging that Section 732.802, Fla. Stat. (the “Slayer Statute”) barred the slayer’s daughter and grandchildren from inheriting under the Decedent’s will and an earlier will, and which challenged the validity of the two wills devising the estate to the slayer and her descendants based upon undue influence in the execution of the wills. In the subject case, Ben Novack’s (the “Decedent”) murder and the murder of the Decedent’s mother were...

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THE CIRCUIT COURT LACKS IN REM JURISDICTION TO DIRECT A PERSONAL REPRESENTATIVE IN A FLORIDA ESTATE PROCEEDING TO DIVIDE AND DISTRIBUTE THE DECEDENT’S REAL PROPERTY IN ANOTHER STATE

Earlier this month in Brown v. Brown, 2015 Fla. App. LEXIS 10748 (Fla. 4th DCA 2015), the Fourth DCA held that a circuit court lacks in rem jurisdiction to direct a personal representative in an estate proceeding to divide and distribute a decedent’s real estate in another state. Rather, to partition out of state real property, a personal representative should initiate an ancillary action in the other state. See, Section 64.022, Fla. Stat.

In the subject case, an estate beneficiary, Robert Paul...

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THIRD DCA FOUND NO ABUSE OF DISCRETION IN AMOUNT OF FEES AWARDED TO SUCCESSOR GUARDIAN BASED ON THE PROPORTION OF THE WARD’S REMAINING ASSETS TO THE AMOUNT OF FEES AWARDED

In Pierre v. Brown, 2015 Fla. App. LEXIS 10360 (Fla. 3d DCA 2015), the Third District Court of Appeal of Florida (the “Third DCA”) affirmed a decision against the successor guardian, Gerald W. Pierre, (“Appellant”), who incurred fees and costs as a result of the actions of the prior guardian with regard to the person and property of Rodney Brown, (the “Ward”). The Ward was adjudicated incapacitated in 2006 and was initially a ward of the Guardianship Program of Dade County. The initial guardian secured assets for the Ward, liquidated the Ward’s...

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FOURTH DCA DOES NOT ALLOW “LEGAL GYMNASTICS” TO MANIPULATE WHETHER WILL PROVISION “AFFECTS” FORMER SPOUSE SO AS TO BYPASS SECTION 732.507(2), FLA. STAT.

In Carroll v. Israelson, No. 4D13-4532, 2015 WL 3999486, 2015 Fla. App. LEXIS 9965 (Fla. 4th DCA 2015), the Fourth DCA reversed the holding of the circuit court which, post-divorce, allowed a woman to be viewed as having predeceased her husband to allow the placement of the decedent’s residuary assets into twin, newly created trusts for the former wife’s niece and nephew. The Fourth DCA found this was contrary to the post-divorce will revocation statute, Section 732.507(2), Fla. Stat. In the subject case, Wendy Israelson Carroll was married to Thomas...

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AMENDMENTS TO FLORIDA PROBATE CODE AND FLORIDA TRUST CODE, EFFECTIVE JULY 1, 2015

The Florida Probate Code and the Florida Trust Code, which govern the administration of Estates and Trusts in Florida, have recently been amended.  While not comprehensive as to all the changes encompassed thereby, we will highlight in this article the revisions reflected in Senate Bill 872 which are applicable to attorneys’ fees and costs; personal representatives; and the notice of administration. These changes became effective July 1, 2015. To review the legislation in its entirety, see

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WARD HELD TO HAVE A VIABLE AND LEGALLY RECOGNIZABLE CAUSE OF ACTION AGAINST AN EMERGENCY TEMPORARY GUARDIAN’S ATTORNEY WHO ALLEGEDLY TOOK ACTION KNOWINGLY ADVERSE TO THE WARD

In Saadeh v. Connors, 2015 Fla. App. LEXIS 9575 (Fla. 4th DCA 2015), the Fourth DCA found that the trial court erred in granting an attorney for an emergency temporary guardian summary judgment in the ward's professional negligence action against her because the ward had a viable and legally recognizable cause of action against the guardian's attorney. The ward was the apparent intended beneficiary of the services of the guardian's attorney.

Mr. Saadeh (“Appellant”) was a wealthy, older man. After...

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THE SUCCESSOR TRUSTEE VIOLATED §736.04117, FLA. STAT. BY FAILING TO PROVIDE 60 DAYS NOTICE PRIOR TO TRANSFERRING TRUST ASSETS TO A SPECIAL NEEDS TRUST, AND BY DECANTING THE TRUST TO A SECOND TRUST WHICH FAILED TO INCLUDE ONLY BENEFICIARIES OF THE FIRST TRUST

In Harrell v. Badger, 2015 Fla. App LEXIS 8918 (Fla. 5th DCA 2015), Rita Wilson (“Decedent”) created a will which provided for a Trust for her adopted son, David Wilson (“Wilson”), which Trust was to receive the remainder of her Estate upon her death. The trustees of the trust selected by Decedent were her sisters as co-trustees, who were to distribute the net income to Wilson and were given the discretion to make additional payments to the son or for his benefit for his support, maintenance and education or to meet emergencies such as illness as...

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CONFLICTING LANGUAGE FOUND IN PROBATE COURT’S ORDER AWARDING FEES AND COSTS FOUND TO CONSTITUTE INTERNAL INCONSISTENCY RESULTING IN REVERSAL

In Acker v. Acker, 2015 Fla. App. LEXIS 8016 (Fla. 4th DCA 2015), Karen and David Acker (“Appellants”) appealed an order of the trial court with regard to the parties’ motion for approval of attorneys’ fees and costs. The motion partially granted Mark Aker’s (“Appellee”) request for payment of fees by the Estate and/or Trust of Stanley Acker. The opinion decided by the Fourth DCA on May 27, 2015 affirmed the trial court on three of the four issues raised by Appellants.

As for the fourth...

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UNDER RULE 1.351, AN OBJECTION DOES NOT AUTOMATICALLY TRIGGER A DEPOSITION PURSUANT TO RULE 1.310; THE COURT HAS THE ABILITY TO RULE ON THE OBJECTION

Lyons v. Lyons, 2015 Fla. App. LEXIS 1850 (Fla. 4th DCA 2015), involved a battle for control over a family trust but the issue specifically ruled upon by the Fourth District Court of Appeal (“4th DCA”) was an objection to the production of documents from the trust accountant, a non-party, pursuant to Fla. R. Civ. P. 1.351. The Lyons Family Limited Partnership (the “Partnership") owned and rented commercial property in Broward County and Pennsylvania. It was created by Norma Lyons and her late husband Richard, who had five children. After Richard's...

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DRAFTING ERROR WHICH OMITTED DESIGNATION OF RESIDUARY BENEFICIARIES SUBJECTS REVOCABLE LIVING TRUST TO REFORMATION PURSUANT TO SECTION 736.0415, FLA. STAT.

In Megiel-Rollo v. Megiel, 2015 Fla. App. LEXIS 5601 (Fla. 2d DCA 2015), the Second District Court of Appeal of Florida found that a revocable living trust was subject to reformation to correct alleged drafting error in which a schedule of beneficial interests was omitted. The Court found reformation to be permissible because the plain meaning of Section 736.0415, Fla. Stat. allows for the remedy of reformation with respect to mistakes of fact or law and the statute is a remedial statute which is to be liberally construed.