In Simmons v. Estate of Baranowitz, 2015 Fla. App. LEXIS 6733 (Fla. 4th DCA 2015), the Fourth DCA held that it was error to enter an order directing a personal representative's counsel to disgorge fees which the circuit court determined to be excessive because the petition to review the compensation of the personal representative’s counsel was never served by formal notice. The subject case was a consolidated appeal from orders entered by the Fifteenth Judicial Circuit to the Fourth DCA.
The estate’s...
In Pitcher v. Waldo, 159 So. 3d 422 (Fla. 4th DCA 2015), John Pitcher (“Appellant”) contests a final summary judgment in which the probate court found that it did not have jurisdiction to decide Appellant's petition for declaratory judgment. Appellant had filed a petition in the probate proceedings of his deceased daughter, claiming entitlement to a larger portion of a jury award to survivors in a wrongful death suit filed by the mother, as personal representative of the daughter's estate. Appellant alleged that he had an agreement with the mother...
In Bain v. McIntosh, 2015 U.S. App. LEXIS 3116 (11th Cir. 2015), Howard Walther and Dorothy B. Walther (The “Walthers”) were the beneficiaries of the James Walther Revocable Life Insurance Trust (the “Trust”) and appealed the District Court’s order granting summary judgment in favor of Steven Kane, Esq. and Kane and Koltun, Attorneys at Law (collectively, “Kane”). Kane served as the attorney for the trustee, Patrick Walther (“Trustee”). The District Court held an attorney, in the subject case Kane, retained to represent the Trustee has...
In Blinn v. Carlman, 2015 Fla. App. LEXIS 3881 (Fla. 4th DCA 2015), the Fourth DCA held a will invalid due to undue influence of Richard Blinn's ("Decedent") fourth wife ("Wife"). Undue influence is based on the theory that the "testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator." Blinn at 2 (citing In re Winslow's Estate, 147 So. 2d 613, 617 (Fla. 2d DCA 1962)).
In ...
On March 18, 2015, The Fourth District Court of Appeal held in Martinez v. Smith, 2015 Fla. App. LEXIS 3966 (Fla. 4th DCA 2015), that the trial court failed to honor a ward's choice of guardian without finding that the appointment of the guardian was contrary to the ward's best interests as required by Section 744.312(4), Fla. Stat. The Court also held that the actions of the designated preneed guardian whereby she moved the ward several times from facilities and failed to communicate well with the ward's nursing staff did not constitute an abuse of powers granted...
Earlier this month, in Ciungu v. Bulea, 2015 Fla. App. LEXIS 3865 (Fla. 1st DCA 2015), the First District Court of Appeal, "1st DCA", addressed issues pertaining to a probate court’s jurisdiction over real property in another country. Decedents, John and Victoria Ciungu, died intestate owning property in both Florida and Romania. John died in February 2003 and Victoria, his wife, died in April 2003. Their son, Ioan Ciungo, ("Appellant") filed Petitions for Administration in the Florida estates and was appointed as personal representative in each estate. Appellant...
The Fifth District Court of Appeal ruled in Kemp & Assocs. v. Chisholm, 2015 Fla. App. LEXIS 1555 (Fla. 5th DCA 2015), that the trial court erred in refusing to recognize the Texas adoption judgment, and in finding the daughter, adopted by persons other than the decedent, to be the sole heir of the decedent. In the subject case, Teofil E. Shablowski (“Shablowski”) and a woman (“JKT”) conceived a child in the summer of 1960. Shablowski did not know that he had fathered a child; JKT put the child of hers and Shablowski’s up for adoption in Texas in 1961...
In Whiting v. Whiting, 2015 Fla. App. LEXIS 2747 (Fla. 5th DCA 2015), genuine issues of material fact regarding the interpretation of a stipulation for limited guardianship ("Stipulation") and an Order Appointing Guardian upon Stipulated Limited Guardianship ("Guardianship Order") were found to preclude summary judgment where it was unclear whether the guardianship was intended to be voluntary or involuntary guardianship. The distinction between voluntary and involuntary was uncertain, and the language of the Guardianship Order was unclear as to whether the Ward...
In Snider v. Metcalfe, 2015 Fla. App. LEXIS 1427 (Fla. 4th DCA 2015), the Fourth DCA held that filing an initial motion to dismiss (not asserting lack of personal jurisdiction), an amended motion to dismiss (which asserted lack of in personam jurisdiction) over two years apart, participating in discovery, and filing a notice of intent to use trust funds to pay for attorneys’ fees and costs did not amount to submission to jurisdiction of the court under Fla. R. Civ. P. 1.140(b). In the instant case, “Appellant,” son of the deceased Harrison Snider, "Decedent,"...
In two consolidated cases, Van Vechten v. Anyzeski, 2015 Fla. App. LEXIS 722 (Fla. 4th DCA 2015), the Fourth District Court of Appeals of Florida (the “Fourth DCA”) held that a beneficiary’s estate waived its objection to the trustee’s alleged inadequate pleading of an entitlement to attorney’s fees when it entered into a pretrial stipulation that presented the issue of whether any party was entitled to the recovery of attorney’s fees and costs pursuant to Fla. Stat. § 736.1005, § 736.1006 and § 736.1007.
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