Probate, Trust & Guardianship Litigation Blog

By: Glenn M. Mednick, Esquire

 

Holding Estate and Probate Attorneys’ Feet to to the First

An opinion released last week by the First District Court of Appeal of Florida (“1st DCA”) concerned the legal practice of attorneys’ involved in estates and trusts by rightfully holding their feet to the fire.  In a case of first impression, the 1st DCA inBookman v. Davidson, 2014 Fla. App. Lexis 6472 (Fla. 1st DCA 2014) reversed a lower court’s decision and held that because a successor personal representative of an estate “steps into” the shoes of his predecessor, although they may lack privity, the successor has every right and duty...

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Natural v. Un-Natural Parental Rights

This month, the Third District Court of Appeal of Florida (“3d DCA”) in Lifleur v. Webster, 2014 WL 1814156 (Fla. 3d DCA 2014) reversed a lower court’s holding that denied a mother’s (“LiFleur”) emergency motion to terminate an agreed temporary orderof custody/parental responsibility and also vested it in the child’s stepmother.  The 3d DCA reasoned that the granted temporary custody order to the father was rendered unenforceable by the father’s long-term incarceration and required the trial court to return custody to the mother...

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Ashes of a Decedent are not Considered “PROPERTY” Under Florida Law, and the Rights of Next of Kin are Limited to Possession of the Body for Purposes of Burial or Lawful Disposition

Just this week in a case of first impression from Palm Beach County, the Fourth District Court of Appeal of Florida (“4th DCA”) in William A. Wilson, Jr. v. Lili M. Wilson, 2014 WL 2101226 (Fla. 4th DCA 2014) affirmed the probate court’s order which determined that the son’s ashes were not considered property as defined by Section 731.201(32), Fla. Stat., and therefore not subject to partition.  After a tragic automobile accident killed their twenty-three year old son, leaving no will and no written or verbal instructions for disposition of...

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Successor Personal Representative’s Standing and Circuit Court Jurisdiction

Earlier this month, the First District Court of Appeal of Florida (1st DCA) in Bookman v. Davidson, 2014 WL 1772707 (Fla. 1st DCA 2014) held as a matter of first impression before the court, a successor personal representative of an estate does have every right and duty to pursue legal malpractice claims against an attorney retained by the original personal representative of such estate, and held that although the lower circuit court in Walton County acted within its discretion when it dismissed the disgorgement claim on the ground that the claims should be ...

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In Florida, Although a Minor Child May be Legitimized After the Execution of a Will, if the Child was Board Previously, he or she is not considered a Pretermitted Child

Earlier this month, the Third District Court of Appeals of Florida (“3d DCA”) in Estate of Maher v. Iglikova, 2014 WL 1386660 (Fla. 2d DCA 2014), reversed the trial court’s ruling and held that a child born before the execution of a will, but legitimized afterwards should not be considered a pretermitted child under Florida law.  A pretermitted child is one that is born after the execution of a will, and therefore is entitled to inheritance under a will.  The case arose out of the probate of the estate of James P. Maher, III (“Maher”),...

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Statutory Requirements Do Not Abrogate Common Law in the Modification or Termination of an Irrevocable Trust

In a case heard this year by the Second District Court of Appeals of Florida (“2d DCA”), Peck v. Peck, 133 So.3d 587 (Fla. 2d DCA 2014), the 2d DCA held that the settlor of an irrevocable trust who filed a petition to terminate her trust was permitted to do so with consent of all the beneficiaries.  Even though statutory termination requirements were not met and the distribution of assets were not in accordance with the trust provisions, common law allows modification or termination of a trust if the settlor and all beneficiaries consent.  The...

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