Probate, Trust & Guardianship Litigation Blog

By: Glenn M. Mednick, Esquire

 

3rd DCA’s Broad “Clear and Convincing Evidence” Standard for Revoking a Trust: Where Even a Napkin Will Suffice

There are various ways one can dispose of their estate when estate planning. Most commonly people have wills drafted, which devise their property to people they love, their family members, friends, charities and so forth. Another popular method people make sure that their assets are dealt with once they pass away is through a trust, in which has a trustee that manages the trust for the beneficiaries in accordance with the trust details. When dealing with wills and trust estate planning it can be very complex and sometimes there are situations where you find wills...

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2nd DCA Rules in Favor of Remaining Settlor of Trust to Have Unfettered Discretion as to its Contents, Careful and Proper Draftmanship is Essential in Estate Planning and Litigation

In the case, Dowdy v. Dowdy, 182 So.3d 807 (2nd DCA 2016), Co-successor trustee Michael Dowdy (hereinafter Michael) brought this action because after one of the settlors of the trust died the living settler removed him as successor trustee. Michael also sought a temporary injunction to compel preservation of trust proceeds for which he was successful. Thus, the settlor appealed. This ruling was ultimately reversed in the 2nd DCA. 

The Dowdy Family Trust created by husband and wife Dennis and Betty...

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The Beneficiaries of a Trust were Permitted to Intervene in a Suit where the Trustee was a Party, but the Order Granting Intervention Cannot Impose Limitations so Burdensome that they Amount to a De Facto Denial of the Motion to Intervene

In Genauer v. Downey & Downey, PA, 190 So.3d 131 (Fla. 4th DCA 2016), the former trustee’s former attorney brought suit against the successor trustee to recover attorney’s fees and damages alleging malicious prosecution. The beneficiaries, who were the children of the settlor of the trust, sought to intervene.  While the Court granted their intervention, the beneficiaries argue that the Circuit Court’s limitations in the order granting their intervention were in essence a denial.  The beneficiaries appealed the trial court’s order...

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The 4th DCA Reversed an Award of Guardianship Fees where Non-Professionals Performed the Majority of the Services and there was no Evidence to Support the Hourly Rate

Monarchcare, Inc. v. Guardianship of Sanford H. Block, et al., 2016 WL 4132749 (Fla. 4th DCA 2016) involved a dispute as to fees charged by one of the co-guardians of Sanford H. Block, who had been adjudicated partially incapacitated. One of the co-guardians (Sharon Fein, hereafter referred to as “Fein”) was a family member while the other was a Professional Guardian, Monarchcare Inc. (hereafter referred to as “Monarchcare”).  Monarchcare’s rates were almost double that of Fein.  The prior Judge who presided over the Guardianship Estate...

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The Florida Rules of Judicial Administration did not Contemplate that a Clerk had to Accept for Filing Paper Documents other than those Falling with the Exceptions of Rule 2.525(D)

In United Bank v. Estate of Frazee, 2016 Fla. App. LEXIS 10780 (Fla. 4th DCA 2016), the Fourth District Court of Appeal addressed the issue of whether the Clerk of the Court was required to accept paper copies of statements of claim received on the last day of the claims period.  United Bank was an alleged creditor of the Estate of Edward G. Frazee. Under Section 733.702(1), Fla. Stat., a creditor must file any statements of claim against a decedent's estate within three months of the first publication of the notice to creditors or within thirty days...

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“The Light Most Favorable” Does not Refer to a Florida Sunrise. In an Appeal, the Appellant is Obligated to Provide a Statement of Facts and to Interpret the Evidence in the Light Most Favorable to Sustain the Trial Court’s Conclusions

In Hall v. Hall, 190 So.3d 683 (April 27, 2016) the Third DCA examined how “ ‘the light most favorable’ is not a reference to a Florida Sunrise” in regards to appellate advocacy in a case which involved loved ones challenging the validity of their deceased family member, Mrs. Hall’s, will and trust. This case demonstrates that appellants must provide statements of facts and interpret evidence in the light most favorable to sustaining conclusions of the finder of fact. Meaning, where competent substantial evidence exists to support the trial courts...

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3rd DCA Reverses Trial Court on Interpretation of Fla. Stat. §736.0602(3)(b)(2) on Case of First Impression, Citing 2nd Restatement of Trusts and 4th DCA

In Bernal v. Marin, 2016 Fla. App. LEXIS 9229 (Fla. 3d DCA, 2016), the Third DCA reversed the trial court, holding that under section 736.0602(3)(b)(2), Fla. Stat., a settlor’s will revoked her earlier trust, although it did not specifically refer to it as the will stated it revoked all prior trusts, and affidavits of attorney who drafted will and settlor's confidant provided clear and convincing evidence that settlor intended to revoke trust and leave estate to her friend.

In October, 2004, Renee Zintgraff...

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3rd DCA Rejects Petition for Writ of Certiorari and Interlocutory Appeal Regarding Annulment Action

In Flores v. Lopez, 2016 Fla. App. LEXIS 8796 (Fla. 3d DCA, 2016), Jose Ignacio Lopez, Sr., an incapacitated person, through his adult children and co-guardians, (collectively “Appellees”) filed a lawsuit for the annulment of his marriage to Maria Mercedes Flores (“Appellant”). In the trial court, Appellant filed a motion to dismiss the annulment action and moved for a protective order, which the trial court denied. Appellant filed a petition for certiorari for review of those orders on appeal. Also in the trial court, Appellees moved to compel...

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2nd DCA Reverses Trial Court Fee Award, Emphasizing Standards for Bad Faith Sanctions and What is Impermissible in Recovery as Costs

In Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016), William Anderson (“Appellant”) sought review of an order requiring him to pay $51,897 in attorney's fees and $10,008 in costs to his mother's estate following his unsuccessful will contest. Appellant’s mother had a will in which she left everything to Appellant’s aunt, excluding Appellant and his brothers. Subsequently, Appellant challenged the will on several grounds. The circuit court upheld the will in a judgment which the Second DCA affirmed in a separate opinion. See Anderson...

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2ND DCA Reverses Trial Court’s Interpretation of Prenuptial Agreement to Avoid Permitting a Double Recovery by Spouse with Relation to Probate Proceedings

In the subject case, Northern Trust Co. v. Shaw, 2016 Fla. App. LEXIS 8476 (Fla. 2d DCA 2016), the Second DCA found that a wife was not entitled to a $500,000 distribution from the probate portion of her late husband's estate because she had already received $500,000 from husband's estate in accordance with a prenuptial agreement. The Court reasoned that if it interpreted the prenuptial agreement to permit her to do so, it would be permitting her to collect the $500,000 distribution from husband's estate twice.