The wife of missing adventurer Steve Fossett has asked a court to declare him dead

In Florida a death certificate is prima facie proof of the “fact, place, date, and time of death as well as the identity of the decedent.” § 731.103(2), Fla. Stat. (2007). It is not conclusive proof of any fact related to the death.  If insurance proceeds are at stake, you'll need a lot more than a death certificate to prove the insured is dead [click here and here for real-life examples of this point].

In a CNN article entitled Wife of missing adventurer wants him declared dead, we get a glimpse of the quantity and quality of the circumstantial evidence Steve Fossett's wife will be submitting in Illinois to legally establish the fact of his death.  I am assuming insurance proceeds are at stake in this case.  Excerpts from the linked-to CNN article demonstrate that Mrs. Fossett is going far beyond simply filing a copy of his death certificate:

"As difficult as it is for me to reach this conclusion, I no longer hold out any hope that Steve has survived," wrote Peggy V. Fossett in court documents filed Monday with the Cook County [Illinois] Circuit Court.

She asked that the will of her husband of 38 years be admitted to probate.

*     *     *     *      *

"No one involved in the search holds out any hope that Fossett is still alive," the petition said.

Rick Rains, a sheriff's supervisor of the San Diego County Sheriff's Department, said Fossett's plane was last spotted at 11 a.m. less than 20 miles from the ranch's airport. "Given the timeline and the sighting of Fossett's plane, I believe he was within 20 to 25 miles of the ranch when he crashed," Rains said.

But, he noted, "the terrain is very difficult to search, with many areas where the crevices, deep ravines and closely grown trees make it impossible to see from the air what is on the ground."

"If Fossett was physically able to find water to survive on in the Nevada desert, he would have been physically capable of signaling searchers, by doing something as simple as crafting a large X of sticks or rocks, or by starting a signal fire," Rains said.

In affidavits supporting his wife's petition, Fossett's doctor described the 63-year-old man as physically and mentally fit.

Robert Keilholtz, a captain in the California Civil Air Patrol who was involved in the search, noted that the difficulty in finding wreckage was underscored by the fact that World War II-era plane wreckage was discovered last spring in the mountain range.

In the search for Fossett, wreckage from eight other crashes was discovered, one of them from the 1960s, the lawyers said.

"Crowdsourcing" appellate briefs in million dollar malpractice verdict against Gunster

The level of interest expressed in connection with the million dollar malpractice verdict against Gunster recently upheld by the 4th DCA [click here] is so high, I've decided to post copies of the 200+ pages of appellate briefs filed in that case as follows:

What do you make of the briefs; what could Gunster have done differently?

The 4th DCA's opinion is woefully lacking in the sort of factual detail needed to provide real day-to-day guidance to practitioners or future litigants.  To make any sense out what happened here, you need to read the briefs.  Rather than attempting to figure out the briefs on my own, I'd like to tap into the collective wisdom of the readers of this blog.  After you've read the briefs, please post a comment answering the following question:


Assuming the 4th DCA correctly decided the case, and everyone was acting in good faith and in the best interest of the client, what could Gunster could have done differently to avoid being sued?

Your comments will hopefully help all of us avoid being the target of the next estate-planning/ probate malpractice claim.  If you're a law student, banker, accountant, etc., I'd like to hear from you too.  Every Florida attorney who reads this blog will appreciate your thoughts (which can be posted anonymously), and I'm guessing that "crowdsourcing" these appellate briefs will result in collective insights none of us on our own would have ever dreamed of.

Service by publication: how to get it right

Wolfe v. Stevens, --- So.2d ----, 2007 WL 2891413 (Fla. 2d DCA Oct 05, 2007)

Florida is the largest recipient of state-to-state migration in the U.S.  Here are a few stats from State-to-State Migration Flows: 1995 to 2000, a U.S. census report:

Florida’s net domestic migration of 607,000, the largest of any state, came primarily from states in the Northeast, particularly New York, which had a net contribution of 238,000 to Florida. Illinois, New Jersey, Ohio, and Pennsylvania also had substantial net outmigration to Florida.

Is it any wonder then that Florida probate proceedings often require service by publication when an individual cannot be located in Florida?

The linked-to case is instructive because it reports on a personal representative that got service by publication WRONG.  Which means we now all have a specific example of what NOT to do if we want to make our next attempted service by publication stick.

Here's why the 2d DCA said the PR got it wrong:

Stevens, as personal representative of her mother's estate, sued Wolfe alleging that he had defrauded their mother out of her home by falsifying Stevens' and the mother's signatures on a “Deed to Trust .” Approximately two months after filing suit, Stevens filed a sworn statement for constructive service pursuant to sections 49.031 and 49.041, Florida Statutes (2005), and subsequently served Wolfe by publication. Wolfe did not respond, and the trial court entered a default final judgment against him. Approximately seven months later, Wolfe moved to set aside the final judgment under Florida Rule of Civil Procedure 1.540 on the ground that service was defective because Stevens had failed to conduct a diligent search before resorting to service by publication. The trial court denied Wolfe's motion finding that he had actual notice of the final judgment and that in failing to act diligently to set it aside, “he was not reasonable.”

“‘When a complainant resorts to constructive service, he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit.’“ Gmaz v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970) (quoting Klinger v. Milton Holding Co., 186 So. 526, 534 (1939)). If constructive service is challenged on the ground that the plaintiff failed to conduct a diligent search, the trial court must determine whether the plaintiff “reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.” McDaniel v. McElvy, 108 So. 820, 831 (Fla.1926); see Gmaz, 238 So.2d at 514. Further, “when a ‘red flag’ is waved to a complainant notifying or warning him of facts which put him on a reasonable course of inquiry as to the whereabouts or residence of a party-defendant to his law suit, he is bound to follow that course to its logical end.” Id.

Stevens had notice of facts that she should have followed before resorting to service by publication. The record indicates that when Stevens filed her complaint she and her attorney knew that Wolfe was represented by counsel. However, instead of contacting Wolfe's attorney regarding the lawsuit, Stevens filed an affidavit of diligent search and inquiry and proceeded to serve Wolfe by publication. At the hearing on Wolfe's motion to set aside the final judgment, Stevens' attorney admitted he had the address and phone number of Wolfe's attorney and that he could have notified him of the lawsuit but he “made the decision, knowing all the circumstances regarding the accusations that were going back and forth, that I would rather go the statutory route.” Under these circumstances, we cannot conclude that Stevens exercised due diligence in attempting to locate Wolfe. Accordingly, service by publication was improper. See Levenson v. McCarty, 877 So.2d 818 (Fla. 4th DCA 2004) (holding that where the plaintiff made no attempt to contact the defendant by telephone or through his known attorneys, service by publication was improper); Torelli v. Travelers Indem. Co., 495 So.2d 837 (Fla. 3d DCA 1986) (holding that the plaintiff did not exercise due diligence in attempting to locate the defendant where she failed to follow an obvious lead to the defendant's whereabouts by inquiring of the defendant's known attorney).

How To Prepare For Mediation: The Mediator's Check List Of Key Legal And Factual Issues

One of the primary benefits of mediating trusts-and-estates disputes is that the mediation session focuses everyone's attention and brings the case "to a head" in much the same way as a trial date; except it happens before the parties pour huge sums of money - and time - into pretrial discovery and motion practice. Taking full advantage of this window of opportunity requires thorough preparation, and nothing beats a good checklist when it comes to making sure you've covered all your basis.

California attorney and mediator David Laufer has just published the "mother" of all premediation checklists in How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues.  The next time you're getting ready to mediate a case pull this checklist, you'll be happy you did . . . and so will your client.





1. Identify each party and title of all participants involved in the dispute.

2. Identify each Disputant required to be present during the mediation process.

3. Identify each decision maker who will not be present during the entire mediation process.

4. Describe any special needs, demands, interests and goals of each Disputant and Counsel.


5. Describe each claim, dispute and defense.

6. Describe each Disputant’s demands –the best case outcome-to be achieved in the Mediation.

7. Identify and quote the key statutes governing the claims and defenses.

8. Identify and quote the key cases governing the outcome of the liability issues. For example: Stout v. Turney (1978) 22 Cal.3d 718: “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent with the logic and purpose of the tort form of action (i. e., compensation for loss sustained rather than satisfaction of contractual expectations) while the ‘benefit-of-the-bargain’ rule has been observed to be a more effective deterrent (in that it contemplates an award even when the property received has a value equal to what was given for it.)”

9. Identify the legal support for each demand for special, general and punitive damages.

10. Identify all defenses to the claims for special, general damages and punitive damages.

11. Identify key disputed facts discussed in the legal briefs.

12. Identify any key facts and legal issues overlooked by Counsel and the Disputants.

13. Identify other issues that may have an effect on the dispute, including change in case and statute law, change in management, change in key decision maker, vacations, trial dates, motions for summary judgment, divorce, employment termination, surgery, promotion, restructure of company, bankruptcy, sale of business, cancellation of insurance coverage, and the need for closure.

14. Should the mediation be conducted in segments? For example, if the claimant is rehired in wrongful terminations claim will the damage claim be resolved? If the franchisor reinstates a franchise will the damage claim be resolved? If the insurance company renews the insurance policy will the claim for bad faith claim be dismissed?

15. Identify possible resolutions of dispute by restoring, creating or enhancing a commercial relationship that the defendant may be able to provide as an alternative to payment of money damages. For example, a HR Director may be able to re-hire an employee without consulting with a higher authority, whereas the payment of a damage claim may have to go through several levels of review and approval and consultations with the company’s risk manger for reporting to an insurance carrier or audit committee.


16. Identify and quote the key provisions of the key documents each party relies on to support a claim or defense.

17. Identify key witnesses necessary to support each Disputant’s claim or defense, and summarize the testimony.

18. Identify key authenticated documents that have been exchanged to support or refute the damage claims.

19. Identify all out of pocket expenses (loss of earnings, medical bills , repairs) exchanged to support or refute the claim.

20. Identify a key decision maker who has surfaced during the mediation.

21. Have arrangements been made to assure that the identified decision makers will be present during the mediation?

22. Which newly identified decision makers will not be able to participate in the mediation process? Should the mediation be rescheduled?

23. Identify all people who have had input on the value of claim.

24. Will an expert (and describe the area of expertise) be helpful in resolving the Dispute.

25. Will it be necessary to postpone the mediation pending a verification of an appraisal, an expert opinion or other information that needs to be made available to key decision makers.


26. Identify all sources of insurance or other funds that will be available to pay a settlement.

27. What has been offered, demanded and rejected in any prior settlement discussions?

28. Describe what each Disputant demands as the minimum acceptable settlement to avoid a trial or other consequence.

29. Identify other cases or settlements of similar cases that have resulted in the minimum acceptable settlement value demanded during the mediation.

30. Is there a settlement in kind or a source of creating settlement value other than the payment of money that may result in resolution of the dispute? For example, in a dispute over the under-sized beams for a construction project, will the under-sized beams create value for another use for another project? In looking for value or settlements in kind, the Disputants should be encouraged to look for all potential sources of value.


31. Is a partial resolution possible?

32. Have the parties documented the settlement and final resolution in an enforceable format in compliance with the law?

33. Is the settlement confidential? If so, under what conditions may it be disclosed?

34. Has the mediator completed her case file, closure documents and procedures for any future references to the mediation. In court-annexed mediations the Mediator must file a form stating the matter resulted in partial agreement, total agreement or non-agreement.

35. For any information that has been disclosed to the Mediator in confidence, state how disclosure of that information affected the mediation?


36. Is there a dispute between the parties and their lawyers about the amount that is owed to the lawyers?

37. Is there a dispute between a party and her insurance company over coverage, legal fees and costs?

38. Identify the legal basis for the claim of recovery of reasonable attorney fees and costs.

39. Identify all objections to the claim for attorney’s fees and costs.

40. List all legal fees, expert fees and costs incurred by each party through the date of the first mediation session.

41. How much of any settlement payment will be paid to the lawyers?

42. Has the Mediator made arrangement for final payment of her fees, received evaluation forms of her performance and obtained permission to use favorable evaluations by Counsel and Disputants as references for marketing purposes?

New Florida legislation expressly authorizes mandatory arbitration clauses in wills and trusts

Effective July 1, 2007, Florida adopted legislation expressly authorizing mandatory arbitration clauses in wills and trusts.  The new statute provides as follows:

731.401 Arbitration of disputes.--

(1) A provision in a will or trust requiring the arbitration of disputes, other than disputes of the validity of all or a part of a will or trust, between or among the beneficiaries and a fiduciary under the will or trust, or any combination of such persons or entities, is enforceable.

(2) Unless otherwise specified in the will or trust, a will or trust provision requiring arbitration shall be presumed to require binding arbitration under s. 44.104.

Two of the Florida attorneys instrumental in passage of the new legislation, Bruce M. Stone and Robert W. Goldman, also co-authored a 2005 ACTEC article discussing mandatory arbitration clauses in wills and trusts entitled Resolving Disputes with Ease and Grace.  The ACTEC article does a good job of summarizing the pros and cons of arbitration, concluding that arbitration is likely "ideal" in the following circumstances:

  1. Fee disputes, including fiduciary and legalfees
  2. Prudent investing disputes
  3. Document construction
  4. Principal and income disputes, includingadjustment powers
  5. Trust terminations or severances
  6. Accounting disputes
  7. Declaratory relief in general

This list of "ideal" abritration senarios implicitly recognizes that arbitration is NOT the best solution for resolving ALL disputes, a view I share and have written about [click here].

Sample arbitation clauses:

Sample clauses are often the best way to understand in concrete terms how a general concept may be applied in the real world.  Note that all of the sample clauses do two things:

  • require arbitration; and
  • define the procedural rules that would govern the arbitation proceeding (for example, who appoints the arbitrator, how many arbitrators are required, what are the discovery rules, etc). 

Under the new Florida arbitration statute, if the settlor does not identify  the procdural rules he or she would like to apply the default rules are provided by F.S. 44.104.

The AAA's website [click here] provides specific procedural rules for arbitrating such wills-and-trusts claims and the following sample arbitration clause:

AAA Standard Arbitration Clause:

In order to save the cost of court proceedings and promote the prompt and final resolution of any dispute regarding the interpretation of my will (or my trust) or the administration of my estate or any trust under my will (or my trust), I direct that any such dispute shall be settled by arbitration administered by the American Arbitration Association under its Arbitration Rules for Wills and Trusts then in effect. Nevertheless the following matters shall not be arbitrable questions regarding my competency, attempts to remove a fiduciary, or questions concerning the amount of bond of a fiduciary. In addition, arbitration may be waived by all sui juris parties in interest.

The arbitrator(s) shall be a practicing lawyer licensed to practice law in the state whose laws govern my will (or my trust) and whose practice has been devoted primarily to wills and trusts for at least ten years. The arbitrator(s) shall apply the substantive law (and the law of remedies, if applicable) of the state whose laws govern my will (or my trust). The arbitrator's decision shall not be appealable to any court, but shall be final and binding on any and all persons who have or may have an interest in my estate or any trust under my will (or my trust), including unborn or incapacitated persons, such as minors or incompetents. Judgment on the arbitrator's award may be entered in any court having jurisdiction thereof.

The authors of Resolving Disputes with Ease and Grace also provided four sample arbitration clauses, including the following two:

Generic provision—Short version:

It is my hope and expectation that there will be no dispute in relation to this Trust [my estate]. Nevertheless, if there is any dispute or controversy among any of the Trustee [personal representative] and the beneficiaries involving any aspect of this Trust [my estate] or its administration, the parties to the dispute may agree on the manner of resolution. If there is no such agreement, the disputing parties shall submit the matter to mediation, and, if unresolved by mediation, to binding arbitration. If a party to the dispute fails to participate in good faith in the mediation or arbitration, the arbitrator or the court having jurisdiction over this trust [my estate] is authorized to award costs and attorney’s fees from that party’s beneficial share or from other amounts payable to that party (including amounts payable to that party as compensation for services as a fiduciary).

Generic provision—Long version with forfeiture clause:

[Comment: As with other language in these sample clauses, the forfeiture provision in paragraph (c) below has not been tested in the courts. Assuming that a mandatory arbitration provision in a will or trust is otherwise enforceable in a given jurisdiction, it is believed that a forfeiture provision is likely to be enforceable also, including in jurisdictions that do not recognize the validity of no-contest provisions.]

(a) It is my hope and expectation that there will be no dispute in relation to this Trust [my estate]. Nevertheless, if there is any dispute or controversy among any of the Trustee [personal representative] and the beneficiaries involving any aspect of this Trust [my estate] or its administration, the parties to the dispute may agree on the manner of resolution. If there is no such agreement, the disputing parties shall submit the matter to mediation, and, if unresolved by mediation, to binding arbitration. If the parties are unable to agree on the selection of a mediator or arbitrator, the court having jurisdiction over this Trust [my estate] shall select the mediator or arbitrator. [The mediator or arbitrator shall have the following qualifications: ACTEC fellow; attorney with at least 10 years’ experience in trusts and estates; etc.]

(b) In the case of arbitration, the arbitrator shall establish the procedure for arbitrating the matter or matters and recognizing the goals of privacy, efficiency, less formality than in a judicial tribunal, and less expense than might be incurred in a judicial forum, while reaching a fair result. The decision of the arbitrator shall be final and binding on the Trustee [Executor], all beneficiaries, and their heirs, successors, and assigns. If the arbitrator determines that a guardian ad litem is needed to represent the interests of unborn, unascertained, or incapacitated interested persons, a guardian ad litem shall be appointed by the court having jurisdiction over this Trust [my estate].

(c) If a disputing beneficiary fails to participate in good faith in the agreed-on procedure for resolution, or in the mediation or arbitration if there is no such agreement, the disputing beneficiary’s interest in this Trust [my estate] shall be forfeited and the beneficiary, if an individual, shall be treated as having predeceased the Settlor [me] [with no surviving issue]. If for any reason it is determined by the court having jurisdiction over this Trust [my estate] that the foregoing provision for forfeiture is not effective, the arbitrator or the court having jurisdiction over this trust [my estate] is authorized to award costs and attorney’s fees from the beneficiary’s share or from other amounts payable to the beneficiary.

(d) The provisions of subparagraph (c) above shall not apply to the beneficial interests of:

(1) the Settlor’s [my] spouse, to the extent that his [her] interest would otherwise qualify for an estate or gift tax marital deduction;

(2) any beneficiary, to the extent that the beneficial interest would otherwise qualify for an income, gift, or estate tax deduction for charitable purposes unless and until all such charitable beneficial interests have expired.

If, however, the Settlor’s [my] spouse or any such beneficiary who is a disputing beneficiary to whom the above forfeiture provisions do not apply nevertheless fails to participate in good faith in the agreed-on procedure for resolution or in the mediation or arbitration, the arbitrator or the court having jurisdiction over this trust [my estate] is authorized to award costs and attorney’s fees from his, her, or its beneficial share.

(e) The acceptance of the Trust by any trustee or co-trustee constitutes the trustee’s or co-trustee’s agreement to comply with the above provisions. If a trustee or co-trustee is a party to a dispute and fails to participate in good faith in the agreed-on procedure for resolution or in the mediation or arbitration, it shall be deemed that the trustee or co-trustee has breached its fiduciary duties and has resigned, and the court having jurisdiction over this Trust is authorized to surcharge the trustee or co-trustee for costs, attorney’s fees, and any other sums deemed appropriate. [The personal representative’s consent to act constitutes his, her, or its agreement to comply with the above provisions. If a personal representative is a party to a dispute and fails to participate in good faith in the agreed-on procedure for resolution or in the mediation or arbitration, it shall be deemed that the personal representative has breached his, her, or its fiduciary duties and has resigned, and the court having jurisdiction over my estate is authorized to surcharge the personal representative for costs, attorney’s fees, and any other sums deemed appropriate.]

(f) If the validity of these provisions requiring arbitration is contested, the court having jurisdiction over this Trust [my estate] shall resolve that issue prior to resolution of the balance of the dispute. If the arbitration provisions are determined to be valid, the balance of the disputed issues shall be resolved as provided in this Article __.

Evidence (or the lack thereof) in probate proceedings

Ramunno v. Terranova, --- So.2d ----, 2007 WL 2480980 (Fla. 4th DCA Sep 05, 2007)

It happens all the time.  One side or the other in a probate proceeding files an un-sworn petition seeking an order that clearly determines someone's property rights.  For example, who benefits from a life insurance policy.  The petitioning party then argues the issue at a hearing where absolutely NO testimony or documentary material that's admissible in evidence ever makes an appearance.  And then the court rules.  Usually the economic stakes aren't high enough to appeal a no-evidence ruling.  But when they are, be careful, because as the linked-to case demonstrates, you just might end up getting reversed:

Lorenzo Ramunno appeals an order entered by the probate court, contending the court miscalculated the amount he owes under a final judgment obtained by the personal representative against him. We affirm the order in all respects, except as to that portion of the order which charges Mr. Ramunno $16,758.61 for life insurance proceeds he received from Metropolitan Life Insurance Co. upon his mother's death. This amount represents four-fifths of the proceeds, which the trial court concluded should have been shared equally by Lorenzo and his siblings.

We reverse as to this portion of the order because the only evidence presented to the trial court concerning the life insurance proceeds was Mr. Ramunno's testimony that he properly received the money. The trial court's contrary findings are supported only by the arguments of the estate's counsel and the unsworn pleadings and attachments from the estate's previous action against Metropolitan Life. These do not suffice as competent, substantial support for the trial court's ruling. See Romeo v. Romeo, 907 So.2d 1279, 1284 (Fla. 2d DCA 2005) (unauthenticated documents and arguments of counsel were not evidentiary support for general master's ruling); Loiaconi v. Gulf Stream Seafood, Inc., 830 So.2d 908, 910 (Fla. 2d DCA 2002) (document and argument of counsel were not sufficient proof to support venue determination); see also Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982).

We therefore reverse only as to this $16,758.61 charge to Lorenzo Ramunno.

Lesson learned: evidence matters.

Most probate practitioners chose this practice area to specifically avoid anything having to do with civil litigation, including evidentiary rulings.  In 99% of probate proceedings, that's fine.  But when it's a contested proceeding, evidence, civil procedure, discovery, it's all there.  And it all matters. 

If you're the petitioning party, even when your side of the argument is a slam dunk, take the time to make sure you've created a solid evidentiary record.  If the probate court rules in your favor, the odds of surviving an appellate challenge are astronomically higher if the order is supported by evidence reflected in the record.  As the winning side learned in the linked-to case, in the absence of such evidence your victory may be short lived indeed.

Murder conviction = no insurance money

Barber v. Parrish, --- So.2d ----, 2007 WL 2384521 (Fla. 1st DCA Aug 23, 2007)

Justin Barber was convicted in 2006 of murdering his 27 year old wife to collect on a $2.3 million life insurance policy.  This case was the subject of intense media attention (see here, here).  Mr. Barber continues to profess his innocence . . . and he's still not willing to walk away from the insurance money.

In the linked-to opinion the 1st DCA upheld a trial court's decision applying F.S. 732.802, Florida's "slayer statute."  Mr. Barber argued that since his murder conviction was being appealed, Florida's slayer statute shouldn't apply.  As I've written before, Florida's slayer statute does NOT require a final murder conviction to apply (see here).  That's the same conclusion the 1st DCA came to in the linked-to opinion, based upon the following rationale:

On appeal, Appellant argues that the trial court erred in granting summary judgment because his conviction cannot be considered final before he has exhausted his appellate rights. This argument has previously been rejected. In Prudential Insurance Company of America, Inc. v. Baitinger, 452 So.2d 140, 141 (Fla. 3d DCA 1984), the insured's husband, who was the primary beneficiary of a life insurance policy, was found guilty of the insured's murder. The probate court entered an order directing the insurance company to pay the policy proceeds to the personal representatives of the insured's estate. Id. The insurance company appealed the order arguing that the husband's conviction could not be considered final due to a pending appeal. Id. at 142. The Third District Court of Appeal examined the legislative intent behind section 732.802 and determined that amendments to the statute demonstrated the Legislature's intent to make it more difficult for a killer to receive a financial benefit for his wrongdoing. Id. at 142-43. It concluded that the term “final judgment of conviction” meant an adjudication of guilt by the trial court, and it affirmed the trial court's order directing the insurance company to pay the proceeds to the personal representatives. Id. at 143. See also Cohen v. Cohen, 567 So.2d 1015, 1016 (Fla. 3d DCA 1990) (holding that irreparable harm would not occur to a primary beneficiary, even if her conviction was reversed on appeal, if the estate was distributed to the remaining beneficiaries because she would be able to seek money damages from those beneficiaries).

Arbitration vs. Mediation in Probate Litigation

A Legal Times article entitled Considering Arbitration's Costs and Dangers does a good job of pointing out arbitration's hidden costs within the context of commercial disputes.  The same pros/cons apply in the probate litigation context. The article concludes by asking:

Why not mediate instead? Because it is nonbinding, mediation may at first glance seem to be a waste of time -- if you're in a dispute, why would you want to spend time in a process that cannot guarantee a resolution? But in many respects, mediation offers all the benefits of arbitration -- lower costs, faster results -- without the limitations. It provides a less formal opportunity for both sides to present their views on a dispute, without having to engage in expensive discovery. It can be performed at the outset of a dispute, or later, within the context of a raging litigation (and in fact, courts more and more require parties to attend nonbinding mediation before permitting a case to be brought to trial). Mediation therefore does not preclude litigation, as arbitration does, but complements it. And the average mediation can be performed in a day.

The nature of the mediator's function is the hidden strength of the mediation process. Arbitrators are essentially private judges, paid to determine an outcome in an impartial fashion. Although arbitrators often seem interested in reaching equitable outcomes to the benefit of all parties, they in fact have no intrinsic interest in the outcome. Mediators, by contrast, are brought to a dispute expressly to find common ground, if possible, and thus have a strong interest in ending a dispute in a manner most fair to all parties.

In the probate-litigation context, mediation is almost always the right answer.  Probate disputes lend themselves to resolution in the mediation context because the costs of litigation are often prohibitive: for BOTH sides.  A good mediator will take a personal interest in brokering a deal both parties can live with . . . and making it happen all in one day.  When I take off my litigator hat and put on my "estate planner" hat, I usually include the following mediation language in my wills and trusts:

Dispute Resolution. If there is a dispute or controversy of any nature involving the disposition or administration of my estate, I direct the parties in dispute to submit the matter to mediation or some other method of alternative dispute resolution selected by them. If a party refuses to submit the matter to alternative dispute resolution, or if a party refuses to participate in good faith, I authorize the court having jurisdiction over my estate to award costs and attorney’s fees from that party’s beneficial share or from other amounts payable to that party (including amounts payable to that party as compensation for service as fiduciary) as in chancery actions.

When is arbitration a good idea?

In the probate litigation context, arbitration may be the right tool if formerly waring parties enter into a settlement agreement or some other type of deal requiring them to work together on multiple issues prior to finally parting ways forever. Examples would include closing down or selling a large family business, partitioning real property, or otherwise liquidating a large and complex estate.  In these cases you have two elements that argue for arbitration: [1] frequency and [2] no bet-the-farm decisions.

[1]  Frequency: In a complex settlement situation, there will be multiple "forks in the road" that all have the potential for bringing the entire process to a screeching halt.  An arbitrator can step in at any time, make a ruling, and keep the parties moving forward.  Here's how this point was made in the linked-to article:

Where companies are wise to think of arbitration as a means of resolving their contractual problems, the common denominator in all such circumstances is frequency. Companies whose businesses inevitably involve transactions with numerous entities are more likely to benefit from designating arbitration as a means of resolving disputes. Arbitration clauses can, in such circumstances, help companies avoid becoming entangled in multiple concurrent court proceedings. The savings and efficiencies clearly outweigh foreseeable disadvantages.

[2]  No bet-the-farm decisions: The fact that appellate rights are almost non-existent in arbitration means you have to be willing to live with wrong or manifestly unjust arbitration rulings from time to time.  In a complex settlement situation, all the arbitrator should be doing is resolving minor "intermediate-step" disputes so that all parties can arrive at a mutually-agreed upon end point.  In this context, the costs of a wrong arbitration ruling should be something the parties can live with.

If the issue being disputed is important enough that you want to make sure your client can appeal a wrong decision, then arbitration is probably not the way to go (mediation, however, remains an excellent choice).  Here's how the linked-to article addressed this point:

[I]t is extremely difficult, if not impossible, to get arbitral decisions overturned through the court system -- let alone reviewed. The proof is in the small number of decided cases in which an arbitral decision or procedure is challenged. For example, according to Stephen Huber's article "The Arbitration Jurisprudence of the Fifth Circuit" for the Texas Tech Law Review, between June 2002 and May 2003, the 5th Circuit issued 155 written opinions, with only 21 of them involving issues relating to arbitration. Indeed, the trend is for courts to conclude that an enforceable arbitration clause swallows up just about every dispute under the contract -- including whether a dispute could be decided by arbitration in the first place. Once you've committed to arbitrate a potential dispute, you're not likely to attract a lot of sympathy from a court if things don't work out as you would have hoped.

"Disengaged" PR + blown estate tax filing deadline = $233,359 late penalty

Estate of Zlotowski v. C.I.R., T.C. Memo. 2007-203 (Jul 24, 2007)

In a probate proceeding the person primarily responsible for getting the job done right is also the person primarily liable if things go wrong: the personal representative ("PR").  When a PR hires a lawyer to advise him or her, the PR is entitled to good advice, but the mantle of ultimate responsibility/ liability for the estate remains with the PR, not the lawyer.

"Disengaged" PR

In the linked-to case an 85-year old PR (referred to as "executor") who had assumed responsibility for administering the estate of a former business partner's widow apparently failed to recognize the gravity of his responsibilities.  The following excerpt from the linked-to opinion is how the Tax Court characterized his conduct:

Mr. Roisen testified about his administration of the estate, and, from that testimony, we draw the conclusion that he was almost completely disengaged from estate administration, relying on Mr. Ledley to do virtually all that was required of him and Mr. Helman. Specifically, we make the following findings, based on Mr. Roisen's testimony: He agreed to serve as an executor to accommodate his old business acquaintance, decedent's husband. He relied on decedent's attorney for the selection of Mr. Ledley as executors' counsel. He knew nothing about the estate and relied fully on Mr. Ledley, who, from his perspective, was in charge of the estate. Apart from signing the Form 706, he did not participate in filing it, which job, he believed, was in Mr. Ledley's hands. He never discussed with Mr. Ledley penalties for a late-filed return. He only discussed with Mr. Ledley whether the return was going to be filed on time after it already was late.

Mr. Roisen's almost complete disengagement from return preparation is captured by his final exchange with one of respondent's counsel:

Q: So, essentially your testimony is that they [i.e., Mr. Ledley] took care of everything relative to the filing of the return?

A: Absolutely. That is a hundred percent correct.

Q: And you had no participation in the filing of the return?

A: No, except that they required my signature, because being the executor of the will, I had to sign it, and which I did. I had full confidence in them.

Mr. Roisen signed the estate tax return, on August 28, 2001, after it was more than 8 months overdue.

Blown estate tax filing deadline = $233,359 late penalty

When the IRS assessed a $233,359 late penalty because the PR filed the estate's Form 706 Estate Tax Return 8 months late, the PR argued his lawyer was responsible for filing the estate tax return, and so the estate shouldn't be held responsible for his lawyer's mistake.  The Tax Court rejected this argument, but summarized the controlling law as follows:

In [United States v. Boyle, 469 U.S. 241, 245 (1985),] at 249-250, the Supreme Court stated:

Congress has placed the burden of prompt filing [of an estate tax return] on the executor, not on some agent or employee of the executor. * * * Congress intended to place upon the taxpayer an obligation to ascertain the statutory deadline and then to meet that deadline, except in a very narrow range of situations.

The Court recognized that engaging an attorney to assist in probate proceedings is “plainly an exercise of the ‘ordinary business care and prudence’ prescribed by [section 301.6651-1(c)(1), Proced. & Admin. Regs.]”. Id. at 250. Nevertheless, describing the executor's duty to file the return as an “unambiguous, precisely defined duty”, the Court cautioned that the executor's expectation that the attorney, as his agent, would attend to the matter “does not relieve the principal of his duty to comply with the statute.” Id.

Widow lacks property interest in husband's body

City of Key West v. Knowles, 948 So.2d 58 (Fla. 3d DCA Jan 10, 2007)

I think cases involving dead bodies often end up getting appealed because families find it hard to believe how limited a person's legal rights are with respect to the remains of his or her loved ones (see here).

This issue received national attention in Florida during the Anna Nicole Smith case, as chronicled on this blog (see here and here) and by Prof. James T.R. Jones of the Louis D. Brandeis School of Law, in an article entitled Anna Nicole Smith and the Right to Control Disposition of the Dead.

In the linked-to case a surviving widow, Lorraine Knowles, filed a federal section 1983 claim against the City of Key West and its former Cemetery Sexton, Gilbert Suarez, on the grounds, among other things, that she was deprived of a property interest in her husband's buried remains without due process.  The 3d DCA ruled that the trial court should have granted the City's motion for directed verdict because the surviving widow lacked a protected property interest in her dead husband's body.  Here's the key language from the linked-to opinion:

To determine whether a property interest exists, for purposes of a section 1983 claim, we must look to state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Crocker, 778 So.2d at 984 (citing Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). “[I]n Florida there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” Crocker, 778 So.2d at 988. These rights to a deceased's remains, however, exist only for purposes of burial, or for other statutory purposes, and nothing further. Id. See Lascurain v. City of Newark, 349 N.J.Super. 251, 793 A.2d 731 (2002). Thus, for purposes of a section 1983 claim, constitutionally protected property interest to decedent's remains ends at the point of burial or other lawful disposition. Any claims for events occurring thereafter must be pursued under traditional common law causes of action. See Crocker, 778 So.2d at 987-88. In this case, Knowles's complaint arises solely from events after the lawful burial of her husband. Hence, there is no constitutionally protected property interest on which Knowles can rest her section 1983 claim under the facts of this case. Therefore, the trial court should have granted the City's directed verdict motion as the close of Knowles's evidence.

Marshall v. Marshall: The Supreme Court's Get-Out-of-Probate-Free Card.

I've previously written about how the U.S. Supreme Court's ruling in Marshall v. Marshall will lead to more trusts-and-estates cases being litigated in Federal Court (see here).  In Marshall v. Marshall: The Supreme Court's Get-Out-of-Probate-Free Card, University of Washington School of Law law student Julian Hurst (2008 J.D. Candidate) examines Marshall's "practical consequences from the perspective of probate law and for those who find themselves challenging the validity of a will or trust."

One of these days you'll either be pushing for federal jurisdiction or opposing it in some form of trusts-and-estates litigation.  When that day comes, remember the linked-to law review article.  Here's the abstract:


The probate exception to federal jurisdiction is a legal doctrine self-imposed by federal courts barring jurisdiction over probating wills or administering estates, or related actions that would interfere with property in the custody of state courts. Courts have struggled with cases that fall at the margins of the exception, creating one of the most mysterious and esoteric branches of the law of federal jurisdiction.

In Marshall v. Marshall, the Supreme Court addressed the federal probate exception for the first time in over 60 years. Eight members of the Court held that the doctrine was legitimate, but more narrow than many lower courts thought. Unfortunately, the decision leaves as many questions as answers. The history, scope and purpose of the federal probate exception, as well as its place in the Supreme Court's federal jurisdiction jurisprudence, has already been treated by other authors. I will examine Marshall's practical consequences from the perspective of probate law and for those who find themselves challenging the validity of a will or trust.

Should Divorce = Automatic Forfeiture of Life Insurance Benefits?

I previously wrote here about a case where an ex-spouse was the windfall beneficiary of insurance benefits because her ex had the audacity of dying after their divorce but before getting around to revising his insurance beneficiary designation forms (it's always the little things that get you!).  This outcome probably seemed unfair to many (except the ex), including Stetson Law student Suzanne Soliman, who just published A Fair Presumption: Why Florida Needs a Divorce Revocation Statute for Beneficiary-Designated Nonprobate Assets, in 36 Stetson L. Rev. 397 (2007).  Here's an excerpt:

Like many Americans, Floridians invest significantly in beneficiary-designated nonprobate estate planning tools such as life insurance. These types of assets comprise the bulk of many Floridians' estate plans because they are easy to obtain and, in many instances, affordable compared to other estate planning tools. It is important to effectuate the policyholder's intent, particularly because so many families trust that these assets will provide some degree of security. Enacting a divorce revocation statute to protect nonprobate assets will provide protection and security for many Florida families.

Special thanks to the Wills, Trust & Estates Prof Blog for posting here on this article.

4 questions to ask yourself before filing any lawsuit

Mike Dillon, General Counsel for Sun Microsystems, Inc., publishes a great blog called The Legal Thing.  In a blog post entitled On Litigation...(Azul), Mr. Dillon shared his "four principals" for evaluating when litigation is appropriate.  I thought his comments were dead on, and applicable to any form of litigation - including probate litigation.  I've reproduced his four principals below with my practice-specific comments:

No. 1 - You only litigate when you have an important interest to protect. Litigation is costly. Incredibly costly. But it is not the expense that is the real issue, it's the diversion of resources. Time employees spend reviewing e-mails and documents, educating lawyers and preparing for depositions is time away from the business. That's the real cost of litigation.

Probate comment: Ask your lawyer to assume the worst case scenario and then estimate how long you should expect the process to last (1 to 2 years is the norm) and how much it will all cost (it will always be higher than you expected).  Then ask yourself, "is it really worth it?"  If the answer is yes, then proceed to point no. 2, otherwise stop immediately and move on with your life.

No. 2 - A non-judicial resolution is almost always preferable. When you file a complaint, you are turning over resolution of an issue to a third party - be it a judge, arbitrator or jury. To a great degree you lose control of the outcome.

Probate comment: In the probate-litigation context, every penny spent on legal fees siphons off a piece of the family inheritance to a third party: the lawyers.  The quickest way to stop the bleeding is to settle the case.  Mediation should be a no-brainer in this type of litigation.

No. 3 - You litigate when you have a high degree of confidence that you will prevail. Bluffing is for weekend games of Texas Hold'em . When you file suit, you need to have fully evaluated all aspects of the case to ensure that the outcome will be favorable.

Probate comment:  Pick your battles carefully.  This is where lateral thinking pays off.  In the probate-litigation context there are often multiple approaches to achieve a desired result.  Some approaches usually favor the defendant, some usually favor the plaintiff.  Depending on what side you're on, play to your strengths.  How you address this point no. 3 will inform points 1 and 2 above.

No. 4 - You litigate to win. This means that your employees, board and management team fully understand and support the commitment (both financial and time) required to prevail. It also means having seasoned litigation counsel who understand your business and objectives.

Probate comment: Litigation is not a negotiation strategy.  Once you've decided a lawsuit is your last best option, you need to be willing to see the process through to the end.

Does attorney as witness to signatures = waiver of attorney-client privilege?

Kranias v. Tsiogas, 941 So.2d 1173 (Fla. 2d DCA Oct 13, 2006)

Attorneys witness their clients' signatures on documents all the time. In the estate planning context, attorneys regularly witness their clients signatures on wills and trusts.  Is the attorney-client privilege waived every time you witness a signature?  The 2d DCA says NO.

The specific exception to the attorney-client privilege at issue here is found in Florida Statutes section 90.502(4)(d), which provides as follows:

(4) There is no lawyer-client privilege under this section when: . . . . . (d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.

In the linked-to case the petitioners were suing the trustee of a land trust for somehow defrauding them in connection with a deed.  The petitioners' own attorney had written to them about the deed, and also witnessed their signatures on the deed.  The trial court said that was enough to require disclosure of attorney's letter.  Wrong answer.  As explained by the 2d DCA, just because counsel witnesses his clients' signatures, doesn't mean the attorney-client privilege is lost:

We conclude that the circuit court erred in ordering the production of this letter based on section 90.502(4)(d), because this exception to the attorney-client privilege does not apply here. There has been no argument that the Petitioners either did not intend to sign or were not competent to sign the quitclaim deeds that conveyed property from a land trust to the Petitioners. The attorney-client privilege is not waived as to communications between an attorney and a client when such communications pertain to the preparation of a document merely because the attorney later acts as a witness to the parties' signatures on that document.

Lesson learned: anticipate privilege waiver issues

A significant cultural difference between planning/transactional attorneys and litigators is their respective sensitivity to circumstances that may result in a waiver of the attorney-client privilege.  Sensitivity to this issue is second nature to litigators (it's part of their every-day practice), non-litigators need to make a conscious effort to keep it in mind.  As I've written before (see here), sometimes it's OK to purposely step into the attorney-as-trial-witness role, you just don't want to end up there inadvertently.

2nd Circuit Re-Examines Standard for "Probate Exception" to Federal Court Jurisdiction

Many predicted that Anna Nicole Smith's 2006 Supreme Court victory involving her late husband's estate would lead to increased numbers of trust-and-estate cases being litigated in federal court (see here and here).

A recent example of the "federalizing" of trust-and-estates litigation is reported on in 2nd Circuit Re-Examines Standard for Probate Exception.  As the following excerpts make clear, it will now be much easier for litigants in the North East (i.e., litigants within the 2nd Circuit's jurisdictional boundaries) to adjudicate trusts-and-estates disputes in federal court:

 A retired attorney's long-running fight with the Bank of New York and a White Plains, N.Y., law firm over her parents' estate gave a federal appeals court the chance to explore the new standard on the probate exception to federal diversity jurisdiction.

The 2nd U.S. Circuit Court of Appeals said a 2006 U.S. Supreme Court decision changed the scope of the exception and the circuit's own case law, with the result that some of the claims brought by Adrienne Marsh Lefkowitz against the bank and McCarthy, Fingar, Donovan, Drazen & Smith can stay in federal court.

Second Circuit Judges John Walker and Peter Hall, with Southern District of New York Judge Denise Cote, sitting by designation, decided Lefkowitz v. The Bank of New York, 04-0435-cv. Hall wrote for the panel.

.     .     .     .     .

[I]n 2006, the U.S. Supreme Court decided Marshall v. Marshall, 126 S.Ct. 1735. In that case, former Playboy playmate and TV reality show star Anna Nicole Smith won a procedural victory in her attempt to collect a bequest from her late 90-year-old husband, Texas oil magnate J. Howard Marshall.

Hall, in writing the 2nd Circuit's opinion, said Marshall "reigned in the boundaries of the probate exception."

"The court explained that in Marshall the probate exception did not apply because plaintiff sought neither to (1) 'administ[er] an estate, ... probate ... a will, or [do] any other purely probate matter,' nor (2) 'to reach a res in the custody of a state court,'" Hall said. "From these statements, we discern that under the clarified probate exception a federal court should decline subject-matter jurisdiction only if a plaintiff seeks to achieve either of these in federal court."

Hall said that, therefore, "insofar as our Court's decision in Moser purported to direct courts to exercise subject-matter jurisdiction over in personam and other claims that might 'interfere' with probate proceedings only ... that holding was overly broad and has now been superseded by Marshall's limitation of the exception."

What does it take to get new evidence admitted after trial?

Robinson v. Weiland, 936 So.2d 777 (Fla. 5th DCA Sep 01, 2006)

In the linked-to case two annuities were at issue.  At the center of the dispute were two change-of-beneficiary forms allegedly signed by the decedent right before he died.  Relying on these change-of-beneficiary forms, the decedent's girlfriend claimed a 60% interest in the annuities (surviving son got the other 40%).  Decedent's sister claimed these change-of-beneficiary forms were invalid because they either weren't signed by the decedent or were the product of undue influence.

The "Smoking Gun" Witness

After trial but before judgment was entered, counsel for decedent's sister hit the jack pot when he managed to track down girlfriend's former roommate who signed an affidavit completely undermining girlfriend's trial testimony.  Roommate's affidavit ended with this bombshell:

After the forms were at the house for a number of weeks, I personally was present when she completed the annuity beneficiary change forms. She told me she was including herself as a 40% beneficiary because she did not want to appear to be too greedy.... The forms were definitely not completed in the presence of John S. Cetrano [the decedent] and were not placed in their envelopes for mailing by John S. Cetrano; Michael Weiland filled them out at 1711 Joshua Drive, NE, Palm Bay, Florida and mailed them many weeks after she first had possession of the forms.

But what if the trial court says "who cares"?

Assume you've found the smoking gun witness, and that the only reason you didn't have this witness at trail was because an opposing party (girlfriend) defrauded you and the court during the discovery phase of the case.  No matter how un-enthusiastic the trial court may be when you seek to have this new evidence admitted, once you allege "fraud", the trial court MUST conduct an evidentiary hearing to address your claims, and failure to do so is reversable error. 

In this case counsel for sister filed motions under Civ. Pro. Rules 1.530 and 1.540(b)(3) trying to get a new trial or to set aside the judgment.  The trial judge summarily denied both motions and was reversed on appeal.  Here's how the 5th DCA summarized its rationale:

The courts consistently agree that the trial court has discretion to grant a motion to reopen a case for presentation of additional evidence after the parties have rested and even after granting a motion for directed verdict for a party. .  .  .  Factors the trial court should consider in determining whether to reopen the case to allow presentation of additional evidence include whether the opposing party will be unfairly prejudiced and whether it will serve the best interests of justice.

Because the trial court summarily denied Robinson's motion, we are unable to determine why the trial court made that decision or what factors, if any, the trial court considered. Moreover, given the allegations of fraud made by Robinson to support her motion, we think an evidentiary hearing was essential for the trial court to properly determine whether to grant the request to present the testimony of Adams.

After the final judgment was entered, Robinson filed her Motion for Rehearing, New Trial, or Evidentiary Hearing, pursuant to rule 1.530, Florida Rules of Civil Procedure, once again alleging fraud as a basis for relief. Cetrano and Weiland argue that Robinson failed to demonstrate the trial court abused its discretion in denying the motion, primarily arguing cases discussing motions for relief from judgment made pursuant to rule 1.540, Florida Rules of Civil Procedure. This court and others have held that if a party files a motion pursuant to rule 1.540(b)(3), pleads fraud or misrepresentation with particularity, and shows how that fraud or misrepresentation affected the judgment, the trial court is required to conduct an evidentiary hearing to determine whether the motion should be granted.  .  .  .  Moreover, the courts have held that the hearing requirement applies when fraud is asserted as a grounds for relief under either rule 1.530 or 1.540, Florida Rules of Civil Procedure.  .  .  .  The motion filed by Robinson sufficiently alleges fraud and demonstrates how it affected the judgment, thereby satisfying the requirement for an evidentiary hearing under either rule 1.530 or 1.540. Therefore, we reject the arguments advanced by Cetrano and Weiland.

We conclude that Robinson was entitled to an evidentiary hearing based on the motion she filed prior to entry of final judgment and the motion she filed thereafter. We, therefore, reverse the order summarily denying Robinson's Motion to Reopen Trial For Newly Discovered Evidence and her Motion for Rehearing, New Trial, or Evidentiary Hearing and remand for an evidentiary hearing. Should the trial court determine that fraud occurred as Robinson alleged, we believe that a new trial would be warranted.

Key word: EVIDENCE

Your client doesn't have a right to a favorable ruling, but he or she is entitled to a fair day in court.  Which means that if the other side cheats, lies or otherwise defrauds you and the court to keep you from finding your smoking gun witness, you have a right to an evidentiary hearing to establish this fraud and a new trial if evidence of fraud is in fact established.

Dismissal for lack of prosecution of adversarial probate proceedings

Weiss v. Berkett, 949 So.2d 1092 (Fla. 3d DCA Feb 07, 2007)

This one-paragraph opinion doesn't explain the facts of the case, but it appears that a probate adversarial proceeding was dismissed for lack of prosecution under Florida Rule of Civil Procedure 1.420(e).  The party whose claim was dismissed then filed a Petition for Writ of Prohibition with the 3d DCA apparently arguing that the trial court improperly applied Rule 1.420(e).  The 3d DCA agreed as follows:

We grant the petition for writ of prohibition. The Florida Rules of Civil Procedure apply to adversarial proceedings in probate court. See Mangasarian v. Mercurio, 570 So.2d 356 (Fla. 3d DCA 1990); Fla. Prob. R. 5.020(d)(2); Fla. R. Civ. P. 1.420(e). The trial court has exceeded its jurisdiction as the order under review does not comport with the requirements of Florida Rule of Civil Procedure 1.420(e) for dismissal for lack of prosecution.

Sample Pleading:

After initially posting on this case, the petitioner, Patricia Pollak Weiss, posted a comment (see below) and was kind enough to email me a copy of her winning Petition for Writ of Prohibition, which, with her authorization, I've copied to this blog post for those interested in reviewing it for future reference.

Lesson learned:

Adversarial proceedings in probate are subject to dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e), which provides as follows:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

A power of attorney is NOT a license to practice law

Forman v. State Dept. of Children & Families, 2007 WL 601628 (Fla. 4th DCA Feb 28, 2007)

Sometimes it's good to review the basics, like needing a license to practice law.  And no, a power of attorney wont cut it.  The fact that we need an appellate opinion to make this point should probably be troubling.  But here we are . . .

Mrs. Forman's daughter, Sara Leftow, has filed a brief on behalf of her mother. It appears that Ms. Leftow is acting under a power of attorney to proceed on her mother's behalf. Ms. Leftow's brief raises valid points of concern.

However, pleadings filed by a non-lawyer on behalf of another are a nullity. See Torrey v. Leesburg Reg'l Med. Ctr., 769 So.2d 1040, 1043 (Fla.2000). The same rule applies to briefs filed in this court. Ms. Leftow's power of attorney to act on her mother's behalf authorizes her to act as her mother's agent, not as her mother's attorney at law. See Hodges v. Surratt, 366 So.2d 768, 773 (Fla. 4th DCA 1979); Pryor v. King, 485 So.2d 28, 29 (Fla. 1st DCA 1986) (holding that trial court was correct in not allowing appellant's wife, who was armed with appellant's power of attorney, to represent him in a quiet title action).

The Florida rule declaring a non-lawyer's pleadings filed on behalf of another to be a nullity is the product of the state's policy against the unauthorized practice of law. See Torrey, 769 So.2d at 1043.

Probate court to vexatious pro se litigant: go hire a lawyer!

Favreau v. Favreau, 940 So.2d 1188 (Fla. 5th DCA Oct 06, 2006)

Pro se (self-represented) litigants are not sensitive to the sanctions normally applied to counsel for bringing frivolous actions, and indigent litigants are not sensitive to fee-shifting or fines.  Little wonder then that an out of control pro se litigant can be especially difficult for both courts and opposing parties to contend with.  (For a recent in depth analysis of this issue from Harvard Law student J. Caleb Donaldson, see "Vexatious Pro Se Civil Litigants in the Massachusetts Courts" (2006)).

The linked-to case is a good example of a Florida probate court using its "inherent power" to manage a vexatious pro se litigant.  The next time you're confronted with the pro se litigant "from hell," you'll be happy you read this opinion .  .  .

The order is not a reviewable non-final order. See Florida Rule of Appellate Procedure 9.130. The remaining avenue for review is certiorari but Edna has failed to establish the requisites for issuance of the writ in this case. A court has the inherent power to prevent abuse of court procedure which interferes with the effective administration of justice. Platel v. Maguire, Voorhis & Wells, P.A., 436 So.2d 303 (Fla. 5th DCA 1983). A requirement that pleadings be accompanied by an attorney's signature is not a restraint which amounts to a complete denial of access to courts. Id.; May v. Barthet, 886 So.2d 324 (Fla. 4th DCA 2004); see also § 68.093, Fla. Stat. (2005) (the Florida Vexatious Litigant Law). The trial court followed procedural requirements by issuing an order to show cause, affording Edna an opportunity to explain why she should not be barred from future pro se filings. Edna has failed to establish a clear departure from the essential requirements of law resulting in irreparable harm. See Cape Canaveral Hospital, Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005).

My guess is that the sub-section of § 68.093 alluded to above by the 5th DCA is the following:

(4) In addition to any other relief provided in this section, the court in any judicial circuit may, on its own motion or on the motion of any party, enter a prefiling order prohibiting a vexatious litigant from commencing, pro se, any new action in the courts of that circuit without first obtaining leave of the administrative judge of that circuit. Disobedience of such an order may be punished as contempt of court by the administrative judge of that circuit. Leave of court shall be granted by the administrative judge only upon a showing that the proposed action is meritorious and is not being filed for the purpose of delay or harassment. The administrative judge may condition the filing of the proposed action upon the furnishing of security as provided in this section.

How much evidentiary value does a death certificate have?

Marshall v. HQM of Winter Park, LLC, --- So.2d ----, 2007 WL 1647561 (Fla. 5th DCA Jun 08, 2007)

In Florida a death certificate is part of every probate proceeding.  The fact that these documents are given conclusive effect in uncontested probate proceedings probably explains why parties attempt to use them to the same effect in contested proceedings, and end up getting reversed on appeal if the trial judge goes along with them (see here).

In the linked-to case a death certificate was used to obtain a summary judgment ruling disposing of a wrongful death claim.  The trial court was reversed on appeal based on the following black letter Florida law:

In granting summary judgment, the trial judge apparently gave conclusive effect to the death certificate and disregarded the opinion of Appellants' expert. This was error. A death certificate is prima facie proof of the “fact, place, date, and time of death as well as the identity of the decedent.” § 731.103(2), Fla. Stat. (2007). It does not constitute prima facie proof of the cause of death, nor does it create conclusive proof of any fact related to the death. As it relates to the cause of death, it simply states the ultimate opinion of the attesting physician. When, as here, a conflicting medical opinion on causation is offered, summary judgment is not appropriate.

Lesson learned?

Death certificates may be necessary to your case, but they are rarely sufficient to get the job done in contested proceedings.  If the circumstances surrounding a decedent's death are being contested, make sure your client understands that simply pulling out a death certificate containing helpful facts will NOT win the day in court (i.e., client should understand and expect to incur the expense and delay inherent to any case where circumstantial evidence is being contested).

Cardinal rule of all litigation: no surprises! (I've ranted on this point before).

Dead Witness Humor

The following is from the Wills, Trusts & Estates Prof Blog:

By Texas Senior U.S. District Judge Jerry Buchmeyer, et cetera, 70 Tex. B.J. 193 (2007):

    D. Clinton Brasher of Beaumont, Texas, received these marvelous admissions “from defense counsel regarding an employee of theirs (up until the time of his death)” who was listed as a fact witness:

1. Admit that ______ is dead.

RESPONSE: Admit insofar as this question is regarding information regarding the death of ______’s body, as his spirit surely lives on.

2. Admit that ___________ will be unavailable to testify at trial.

RESPONSE: Admit subject to ___’s coming back to life and subsequently testifying in this matter, or, for that matter, testifying through a duly appointed oracle. … Inasmuch as this request for admission is meant to cover such things other than whether or not ____ will be available to testify live at trial, no pun intended, Plaintiff objects to the request as vague.

Estate misses opportunity to save $2.8 million in estate taxes

Estate of Hester v. U.S., --- F.Supp.2d ----, 2007 WL 703170 (W.D. Va. Mar 02, 2007)

The estate tax automatically makes the IRS the biggest creditor of most large estates.  Understanding this dynamic can translate into millions in savings for a client . . . or a colossal missed opportunity.

In the linked-to case the estate attempted to claim a $2.8 million estate tax refund based on the theory that the decedent had misappropriated millions in trust funds and thus the remainder beneficiaries of the subject trust would have claims against the estate that would result in corresponding estate tax deductions.  The estate's theory collapsed in on itself because it didn't claim the $2.8 million estate tax refund until after the statue of limitations period had run on possible claims against the decedent's estate for misappropriating trust funds.  Here's how the court articulated this point:

Allowing a deduction here, where a taxpayer is attempting to secure a refund for a theoretical liability that will never be paid and that is now barred by the statute of limitations, would essentially “exalt form over substance.” Estate of Hagmann, 60 T.C. at 468. Therefore, because the estate has neither an actual or expected claimant, or a cognizable claim, the misappropriated assets are not deductible under § 2053(a)(3).

Lesson Learned: Probate administration and estate tax reporting need to go hand-in-hand

In the linked-to case the estate failed to coordinate the probate proceeding with its anticipated estate tax positions.  The outcome would have likely been very different if - prior to expiration of the applicable statute of limitations - the estate had simply conceded a liability to the trust beneficiaries in the context of the probate proceedings - utilizing whatever mechanism is available under Virginia  law for doing so (in Florida, F.S. 733.703(2) authorizes a Personal Representative to file a proof of claim for all claims he or she has paid or intends to pay).

Failing to anticipate the estate-tax ramifications of actions taken - or not taken - in the probate proceeding likely cost this estate $2.8 million in avoidable estate taxes.

Florida appeals court upholds lower court ruling giving Anna Nicole Smith's body to her daughter

Arthur v. Milstein, --- So.2d ----, 2007 WL 602630 (Fla. 4th DCA 2007)

Poor Judge Seidlin.  Even when he gets it right . . . he's wrong.  Relying on the "tipsy coachman" doctrine, which allows allows an appellate court to affirm a trial court that “reaches the right result, but for the wrong reasons” so long as “there is any basis which would support the judgment in the record,” the 4th DCA upheld Judge Seidlin's ruling granting power to decide where Smith will be buried to Richard C. Milstein, as guardian ad litem for Smith's 5-month-old daughter, Dannielynn Hope Marshall Stern.

According to the 4th DCA, the trial court incorrectly based its ruling on Florida statutes intended to guide funeral home operators and medical examiners:

The trial court relied upon section 406.50(4) to determine that Dannielynn had priority over Arthur. .  .  .  .

We find that neither section 497.005(37), nor section 406.50, control the outcome of this case, which in essence involves private parties engaged in a pre-burial dispute as to the decedent's remains. Otherwise stated, the trial court was not being asked to consider whether a funeral home or medical examiner was liable for its decision with respect to the disposition of a decedent's remains.

Instead, as I predicted here, the 4th DCA held that its prior ruling in the Cohen case was the correct basis for deciding this dispute: Anna Nicole Smith's body should be disposed of in accordance with her intent, as established by clear and convincing evidence.

Here's how the 4th DCA articulated its rationale:

In this case, common law is dispositive. Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005); Leadingham v. Wallace, 691 So.2d 1162 (Fla. 5th DCA 1997). Generally, in the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition. Kirksey. In Cohen, we held that a written testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. Cohen looked to decisions of other states which determined that whether to enforce the will provisions regarding disposition of the testator's body depends upon the circumstances of the case.

*     *     *     *     *
Cohen noted that there were “no cases in Florida or across the country in which a testamentary disposition has been upheld even though credible evidence has been introduced to show that the testator changed his or her mind as to the disposition of his/her body.” 896 So.2d at 954. There, we found no abuse of discretion associated with the trial court's finding of the decedent's intent. See also Leadingham. We note that even under section 497.005(37), the first priority is to the wishes of the decedent “when written inter vivos authorizations and directions are provided” and that the remaining list of legally authorized persons are those who are most likely to know and follow those wishes. To the extent sections 497.005(37) and 406.05(4) provide guidance, the priorities therein could set forth a presumption, rebuttable by clear and convincing evidence of the decedent's intent, as was the will in Cohen, and as found here.

This is probably the end of Florida litigation involving Anna Nicole Smith.  Apparently the Bahamian court system will be the next stop for this litigation train.  See Wrangling over Anna Nicole’s body ends:

A judge in the Bahamas is hearing the child custody dispute between Arthur and Stern, who is listed as Dannielynn’s father on the birth certificate. On Tuesday, Arthur saw the little girl for the first time and left the home in tears.

In Fort Lauderdale on Wednesday, Judge Lawrence Korda ordered DNA samples from Smith’s body be turned over to attorneys for photographer Larry Birkhead, an ex-boyfriend of Smith’s. Frederic von Anhalt, the husband of actress Zsa Zsa Gabor, also says he could be the father. But Korda said he had no jurisdiction to do anything further.

“The Bahamas is the proper venue, and the Bahamian court has already exercised jurisdiction over the minor child,” Korda said.

Once removed, foreign estate administrator lost standing to pursue claims

Juega v. Davidson, --- So.2d ----, 2007 WL 465523 (Fla. 3d DCA Feb 14, 2007)

Who has standing to sue and when is a recurring them in trusts and estates litigation.  In probate proceedings, the issue is framed in terms of who is an "interested person,"  In non-probate trust litigation, the issue is governed by Florida Rule of Civil Procedure 1.210(a).

In this case an estate administrator appointed as part of estate proceedings in Spain filed a 1994 lawsuit in Miami, Floria.  The case apparently dragged on for years.  In 2003, the Spanish estate was closed on the estate administrator was discharged.  Having acquired a taste for U.S. litigation, in 2004 the foreign administrator proceeded with his case in Miami after having been discharged in Spain.

The trial court dismissed the discharged-foreign administrator from the lawsuit on lack-of-standing grounds.  The 3d DCA agreed, providing the following helpful guidance:

Florida Rule of Civil Procedure 1.210(a) states, in pertinent part:

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought.

By its express wording, Rule 1.210(a) enumerates six categories of persons who may bring an action for the benefit of another without joining the real party in interest. However, the real party in interest may prosecute in his own name as well even if one of those six categories of persons is available. See Estate of Morales v. Iasis Healthcare Corp., 901 So.2d 965, 966 (Fla. 2d DCA 2005) (“[i]n cases involving claims made by ... an estate, there are two parties: the estate and the personal representative”). Here, [foreign administrator] ceased to be the estate administrator and the Estate ceased to be the real party in interest in 2003.

Because [foreign administrator] ceased to act in his representative capacity in 2003, he did not have standing in 2004 to raise claims on behalf of the estate.

Florida's recognition of tort of intentional infliction of emotional distress caused by extreme and outrageous conduct in handling of cremation

Matsumoto v. American Burial and Cremation Services, Inc., --- So.2d ----, 2006 WL 3733310, 32 Fla. L. Weekly D26 (Fla. 2 DCA Dec 20, 2006)

In light of the ongoing litigation involving conflicting claims for custody of Anna Nicole Smith's body (see here), the linked-to case seems especially timely (thanks to Alachua, FL attorney Jane E. Hendricks for pointing it out to me).

The linked-to case answers two questions that can be expected to come up from time to time in a probate practice.  After the publicity the Anna Nicole Smith case is bringing to litigation involving control of a decedent's body, these questions may come up with more frequency.

  • Question 1: Can you sue someone for causing you emotional pain and suffering over the disposition of a family member's dead body?  Answer: YES.  Here's how the 2d DCA described this particular tort:

Ms. Matsumoto sued the appellees in June 2003, claiming that they tortiously interfered with the body of her deceased father, Lenzo Chavis. Her pleading and her trial theme more accurately reflect a tort claim for outrageous conduct causing severe emotional distress. See, e.g., Smith v. Telophase Nat'l Cremation Soc'y, Inc., 471 So.2d 163 (Fla. 2d DCA 1985) (acknowledging Florida's recognition of tort of intentional infliction of emotional distress caused by extreme and outrageous conduct in handling of cremation); Williams v. City of Minneola, 575 So.2d 683, 690-91 (Fla. 5th DCA 1991) (holding that cause of action lies in tort for infliction of emotional distress by outrageous conduct involving dead body); Baker v. Fla. Nat'l Bank, 559 So.2d 284, 287 (Fla. 4th DCA 1990) (recognizing that claim for intentional infliction of emotional distress and “tort of outrageous conduct” are the same claim).

  • Question 2:  Does a funeral home have an affirmative duty to find the next of kin with highest priority under Florida law when seeking authority to cremate a decedent's body?  Answer: NO. According to the 2d DCA Florida Statutes section 470.002(18) [now repealed] specifies the priority of persons who may direct the disposition of the decedent's body.  Under this statute, a decedent's child has priority over a brother or sister.  In the linked-to case the decedent's estranged daughter claimed the funeral home should have tried to locate her prior to following the directions of the decedent's brother.   The 2d DCA rejected her claim as follows:

Ms. Matsumoto .  .  .  urges us to graft upon the statute a requirement that the funeral home undertake a diligent search for the closest next of kin if their whereabouts are unknown by those lower in priority under the statute. She suggests that the funeral home must make a good faith effort, similar to that required for constructive service of process, to locate the unavailable next of kin. See § 49.041(1), Fla. Stat. (2002). The statute does not impose a due diligence requirement on funeral homes. Nor does it require funeral homes to provide others with higher priority notice of a family member's death. We decline to impose such obligations on the funeral home.

4th DCA on intestate succession and DNA testing: paternity adjudication trumps biology

Glover v. Miller, 2007 WL 247899 (Fla. 4th DCA Jan 31, 2007)

In 2005 sixteen-year-old Jerrod Miller was shot to death by a Delray Beach police officer.  Ten years earlier, in 1995, Kenneth Miller was declared Jerrod's father by an adjudication of paternity and judgment requiring child support.  In 2006 posthumous DNA testing revealed a 99% likelihood that another man, Terry Glover, is really the biological father of Jerrod.  Because Jerrod died without a will, under Florida's laws of intestacy (F.S. 732.103), Jerrod's estate passes to his parents in equal shares or to his sole surviving parent if either predeceased him.  Jerrod's mother died in 2003, so whomever ends up designated as his father gets everything.  According to this Sun-Sentinel report, millions could be at stake:

Miller's attorney, T.J. Cunningham, said Willie Gary would file a wrongful-death lawsuit as soon as Miller is formally appointed personal representative of the estate. Gary, a high-profile Stuart attorney, previously notified Delray Beach that the estate would settle the case for $7.5 million.

Both men filed dueling petitions for administration of Jerrod Miller's estate.  The probate court ruled in favor of Miller based on the 1995 paternity adjudication -- and the 4th DCA upheld that ruling based in part on the following rationale:

Section 732.101(2) provides that the decedent's date of death is the event vesting the heirs' rights to intestate property. At the date of Jerrod's death, Glover was not considered Jerrod's father for purposes of intestate succession, because he never married Jerrod's mother, was never adjudicated to be his father, and never acknowledged in writing that he was Jerrod's father. In contrast, Miller was Jerrod's father for purposes of intestate succession because he was adjudicated to be Jerrod's father. Thus, Miller's rights vested on Jerrod's death because he is Jerrod's father by a paternity judgment. Jerrod was a lineal descendant of Miller within the meaning of section 732.108(2)(b), so he is an heir for purposes of section 733.301(1)(b) 3.

.  .  .  .  .  .

As noted by the trial court, Glover did not move to set aside the adjudication of Miller's paternity. His petition for administration of the estate merely alleged that he is the biological father of Jerrod. Yet Miller is Jerrod's father in the eyes of the law, regardless of the results of DNA testing. FN1 The legal father has substantial rights (in this case vested rights) which cannot be lightly dismissed, even by the discovery that the legal father is not the biological father. In fact, our supreme court has held that the mere fact that biological testing shows that a man other than a legal father is the biological father of the child without more does not require the granting of a paternity petition. Dep't of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla.1993).

FN1. Glover's contention that he is entitled to summary judgment of fatherhood based upon DNA testing alone is also statutorily inaccurate. Where DNA testing shows a 95 percent or more confidence level that the man is the biological father, it creates only a rebuttable presumption of fatherhood. § 742.12(4), Fla. Stat. (2006).

.  .  .  .  .  .

We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers. See Achumba v. Neustein, 793 So.2d 1013, 1015 (Fla. 5th DCA 2001).

Divorce + Life Insurance Payments to Ex' = Probate Litigation

Spoerr v. Manhattan Natl. Life Ins. Co., 2007 WL 128815 (S.D.Fla. Jan 12, 2007)

I've written previously about the probate-litigation issues lurking at the end of many divorces (see here).  Case in point: receipt of life insurance proceeds by ex-spouse.  That's what the linked-to case is about: ex-husband was the named beneficiary of a life insurance policy on his ex-wife.  Ex-wife executed a durable power of attorney ("POA") designating her son as her attorney-in-fact.  Son used the POA to change the beneficiary designation form on his mom's life insurance policy.  When mom died, the insurance company paid son $250,445.80.  Dad found out and sued everyone in sight to get his hands on the insurance money.

Probate disputes involving conflicting claims to life insurance proceeds are common.  There are three aspects of this case that I find most interesting.

1.    Increased federal jurisdiction over probate disputes.

Although not technically a dispute involving the decedent's probate administration, the litigation at issue in the linked-to case is part and parcel of the big picture involving who gets what after mom died.  The fact that this particular piece of the litigation ended up in court (diversity jurisdiction) may mean nothing, or could be another example of the increased "federalization" of trust-and-estates litigation predicted by those following the U.S. Supreme Court's decision in Marshall v. Marshall, and written about recently in Marshall v. Marshall -- Rashomon Revisited, Prob. & Prop., Jan./Feb. 2007.

2.   The scope of authority conveyed in a Durable Power of Attorney

Abuse and exploitation of the elderly by means of durable powers of attorney is an often-written about problem (see here).  In the linked-to case, the court ruled that son's use of his mom's POA to change the beneficiary designation on her life insurance policy was was void ab initio, based on the following rationale:

The construction of the durable power of attorney (“POA”) executed by Patricia in July of 2003 is a matter of law. See James v. James, 843 So.2d 304, 308 (Fla. 5th DCA 2003) (“Construction of a power of attorney, like contract law, is a matter of law.”). In construing a POA, “[t]he court must look to the language of the instrument, as with any other contract, in order to ascertain its object and purpose.” Johnson v. Fraccacreta, 348 So.2d 570, 572 (Fla. 4th DCA 1977). In addition, “ ‘powers of attorney are strictly construed.’ “ Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 269 (Fla. 4th DCA 2006) (quoting De Bueno v. Castro, 543 So.2d 393, 394 (Fla. 4th DCA 1989)). The POA at issue in this case contains a limitation on the authority granted to the attorney-in-fact.  Specifically, the POA states:

Limitation. Notwithstanding the powers contained in this Durable Power of Attorney, my attorney in fact may not perform duties under a contract that require the exercise of my personal services; make any affidavit as to my personal knowledge; vote in any public election on my behalf; execute or revoke any Will or Codicil on my behalf; create, amend, modify, or revoke any document or other disposition effective at my death or transfer of assets to an existing trust created by me unless expressly authorized by this Power of Attorney or said document; or exercise powers and authority granted to me as trustee or court appointed fiduciary unless otherwise expressly authorized by said instrument of the court.

(D.E. No. 33 Exh. B ¶ (q)) (emphasis added). See also Fla. Stat. § 709.08 (stating the same limitation on an attorney-in-fact).  Thus, this language specifically prohibits the attorney-in-fact from changing the beneficiary of a life insurance policy as was done in this case unless the POA specifically authorizes the attorney-in-fact to perform this action. Upon examination of the POA, there is no provision which expressly authorized Richard T. as Patricia's attorney-in-fact to change the beneficiary on her insurance policy. Manhattan's contention that paragraph (i) of the POA which provides that the attorney-in-fact could “execute and deliver applications for insurance ··· and to cancel and select the amounts therefor” authorized Richard T. to change the beneficiary on an existing policy is without merit. Applying for insurance is not the same as changing the beneficiary on an existing policy and paragraph (i) is in no way an “express” authorization for Richard T.'s actions as required by paragraph (q) of the POA. Therefore, the policy change request executed with Richard T.'s signature as Patricia's attorney-in-fact is void ab initio. See, e .g., Campbell v. Metropolitan Life Ins. Co., 812 F.Supp. 1173 (E.D .Okla.1992) (finding where a change of beneficiary form for a Federal Employees Group Life Insurance policy was not witnessed as required by the applicable law the attempted change was “invalid and of no effect.”).

3.   No immunity for insurance company under F.S. 627.423

The last thing insurance companies want is to get sucked into probate litigation.  The purposes of F.S. 627.423 is to make sure they don't.  This statute basically says that insurance companies can't be sued for paying out insurance proceeds in accordance with a policy's beneficiary designation form.  The trial court said the statute didn't apply, and thus the insurance company could be sued by dad to recover the insurance proceeds wrongfully paid to son, based on the following rationale:

First, the court ruled that because the beneficiary designation was void ab initio the statute did NOT apply.

[A]s payment was made to Richard T. and not Richard E. and as the change of beneficiary was void ab initio, the payment was not made “in accordance with the terms of the policy” to the “person then designated.”

Second, the court ruled that the insurer essentially had constructive knowledge of the fact that it was paying the insurance proceeds to the wrong person, thus for this reason as well the statute did NOT apply.

Furthermore, an insurer is only immune from liability where payment to the beneficiary was done in good faith without knowledge.

Here, it is undisputed that the policy only gave the power to change the beneficiary to the owner of the policy, who in this case was Patricia. (D.E. No. 1, Exh. A at 4,8). It is also undisputed that Manhattan received the POA and relied upon it in approving the change of beneficiary request signed by Richard T. (D.E. No. 32, Exh. 2 at 2). As the POA did not allow Richard T. as attorney-in-fact to execute the change of beneficiary form, a fact that is clear from the face of the POA, Manhattan was on notice that this change of beneficiary form was invalid and that Richard E. remained the beneficiary of the policy. See, e.g., Stavros v. Western & Southern Life Insurance Company, Inc., 486 S.W.2d 712 (Ky.1972) (where the Court found an insurance company was not immune from liability under a similar statute because insurer should have known that the change of beneficiary was unauthorized as the form changing the beneficiary was not executed by the insured, an eleven-year-old-boy or his parent or guardian as required by the policy). Thus, section 627.423 does not preclude Manhattan from liability.

Court to PR: just because you have grounds to sue, doesn't mean you should

Disque v. Unger, 2007 WL 101375 (Fla. 4th DCA  Jan 17, 2007)

The linked-to case does a good job of underscoring a key concept often lost on personal representatives: they are fiduciaries.  In other words, no matter how strongly they may personally feel about a contested issue, prior to using estate funds (i.e., assets that belong to someone else) to embark on new litigation they need to be able to answer the following question with an unqualified YES: is this litigation in the best interest of the estate?

The PR in the linked-to case failed the "best interest" test when he filed a declaratory judgment action seeking construction of a marital settlement agreement.  Only problem was that no matter how the court construed the contested marital settlement agreement . . .  no assets would flow into the probate estate being administered by the PR filing the declaratory judgment suit.  Both the trial court and the 4th DCA ruled the PR had failed the best-interest test and dismissed his action.  The following excerpts from the linked-to case summarize the controlling law at play in this case:

Section 733.602(1), Florida Statutes (2003), which describes the general duties of a personal representative, provides:

A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by s. 737.302. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interest of interested persons, including creditors. (emphasis added)

The parties do not contest the trial court's conclusion that, no matter which way the dispute was resolved, it would be of no financial benefit to the estate. The appellants contend, however, that the probate court should have resolved the issue because the property settlement agreement authorized Rose's estate to enforce it. The fact that the estate was authorized by the property settlement agreement to enforce it, however, does not satisfy the requirement of section 733.602(1), that the personal representative act in the best interest of interested persons.

In this case the persons interested in the estate, beneficiaries or creditors, have no interest in the dispute involving Alvin's will. We accordingly agree with the trial court that, under these specific facts, where the estate could not benefit financially, and the dispute could be resolved in a lawsuit between all of the interested parties without the estate being a party, the estate should not be involved.

*     *     *     *     *

When the personal representative found himself in a quandary as to whether to file this lawsuit, he should have sought court approval before filing the lawsuit, as is authorized by section 733.603, Florida Statutes (2003). When the trial court concluded, on its own, that pursuing this litigation was not in the best interest of the estate, it was simply doing what was contemplated by section 733.603. Because it is undisputed that the estate cannot benefit financially, and that further litigation will deplete the assets which would otherwise go to interested persons, there is no reason to prolong this proceeding.

Lesson Learned:

The concepts at play in this case can be used very effectively as defensive tools. 
It will often be easier, cheaper and quicker to obtain a court order barring a PR (or any other type of fiduciary) from pursuing litigation on the grounds that the action is not in the best interests of the estate vs. obtaining a dismissal of the actual lawsuit.  For example, in the linked-to case, the initial declaratory judgment action would have probably been dismissed if at the outset the parties opposed to the action had simply filed a motion to dismiss based on the law cited above with a short affidavit stating that the outcome of the action, no matter who won, would not benefit the estate.

"Pay on Death" vs. "In Trust For" bank accounts

Jonathan Alper's Asset Protection Blog had an interesting post entitled Bank Accounts to Avoid Probate: POD vs. ITF accounts.  In estate administrations you come across pay-on-death "POD" bank accounts and in-trust-for or "ITF" bank accounts (also known as Totten trusts) all the time.  Jonathan makes some interesting points regarding the differences between these two non-probate accounts on asset-protection grounds.  Although I'm not sure I agree with his conclusions, here's an excerpt:

Here's my understanding, although I know of no cases comparing the two types of accounts. . ITF , “in trust for” implies the existence of a trust relationship so that the beneficiary of the trust (Mary) would have equitable ownership in the account funds from the day John funds the account. . Of John opened a POD account, Mary would have no rights or interest in the account during John’s life, and Mary would first acquire an interest upon John’s death. From an asset protection standpoint, John is a trustee over Mary’s money during his life in the case of an ITF account, and John has no equitable ownership in the money which would be vulnerable to his creditors. Creation of the ITF account is an immediate gift in trust to Mary. If John’s POD account John has a life estate in the account and the beneficiary has a remainder interest. During his lifetime John has full access to money in his POD account; Mary’s interest is limited to what is left in the POD account upon John’s death.. Because John can access for his own use money in a POD account during his lifetime I expect that John’s creditors could attack money his POD account as they can get whatever rights John has in the POD account. For that reason, I believe an ITF account provides better asset protection as well as probate avoidance.

A tale of two "deeds": equitable v. legal title

Rice v. Greene, 2006 WL 3327665 (Fla. 5th DCA Nov 17, 2006)

It's not often that a probate-related case forces the parties to distinguish between Equitable Title in real property (i.e., the present right to possession with the right to acquire legal title once a preceding condition has been met) and Marketable Title in real property.  Well that's exactly what happened in this case.

Here widow inherited real property from her husband in 1994 pursuant to her late husband's will . . . but she never got around to probating the will.  Ten years later widow sells the same property to two different buyers.  "Buyer A" bought the property in June 2004 and received a warranty deed from widow.  A few months later in October of 2004 widow sold same property to "Buyer B" and also gave him a warranty deed.  Buyer B recorded his deed before Buyer A. 

So who owns what?

  • Upon husband's death, widow instantly vested as an equitable owner of the property . . . even though she never probated his will.  F.S. 732.514.
  • Although she had equitable ownership, widow's failure to probate her husband's will meant she never acquired marketable titleF.S. 733.103(1).
  • Buyer A was out of luck under Florida's recording statute (F.S. 695.01(1)), because Buyer B recorded his deed first.  This doesn't mean Buyer B had clear title, only that Buyer A is now out of the picture and Buyer B has first dibs on working with one apparently easily confused widow on cleaning up the title mess she created.

Here are a few excerpts from the linked-to case summarizing the points above:

[Buyer A] is correct that under section 733.103, Mr. Schwartz's unprobated will was ineffective to “prove title” to the property, under section 732.514. But, it was Mr. Schwartz's death that vested Mrs. Schwartz's rights in the property. Reading these statutes in concert, it is clear that because Mrs. Schwartz never offered Mr. Schwartz's will for probate, she lacked marketable title to the property. However, she clearly acquired equitable title to the property upon her husband's death, assuming, as have the parties, that Mr. Schwartz's will, which was presented to the court below, is authentic. Admittedly, because Mrs. Schwartz's title was not marketable, under certain circumstances, it might have been subject to divestment for the payment of claims, expenses of administration or taxes. Regardless, those are matters that affect the quality of the title, which is not at issue here. Instead, the only issue is which party has a priority claim to the property as between [Buyer A] and [Buyer B].

“[A]n unrecorded deed is not good or effectual in law or equity against creditors or subsequent purchasers for valuable consideration who are without notice of the transaction.” Fryer v. Morgan, 714 So.2d 542, 545 (Fla. 3d DCA 1998). Therefore, because [Buyer B] had no notice of the earlier warranty deed between [Buyer A] and Mrs. Schwartz and paid valuable consideration for the property, [Buyer B's] recording of his warranty deed before [Buyer A] gives [Buyer B] priority to the property. Since there is no genuine issue of material fact and [Buyer B] is entitled to judgment under section 695.01(1), the trial court did not err in granting [Buyer B's] motion for summary judgment.

We do note that the language of the final judgment is overly broad, in that it purports to quiet title to the property in [Buyer B]. While the final judgment adjudicated the dispute between [the buyers] .  .  .  much more work is necessary before [Buyer B] will have marketable title to the property.

Ex parte injunction baring trustee from seeking compensation reversed on appeal

Cone v. Anderson, 2006 WL 2986471, 31 Fla. L. Weekly D2621 (Fla. 1st DCA Oct 20, 2006)

The 1st DCA's opinion provides no facts whatsoever to explain what was going on when the trial court entered an order enjoining the trustee-defendant from seeking compensation without prior court approval (which begs the question: why even publish an opinion that provides close to zero guidance to future litigants??).  However, reading between the lines I think what happened here was that the appellee obtained the injunctive order on an ex parte basis . . . which is a no-no in the absence of the compelling circumstances required by Civ. Pro. Rule 1.610 for ex parte injunctive relief:

Florida Rule of Civil Procedure 1.610 governs injunctions. If the language of an order is injunctive in nature, the order must comply with the requirements for the issuance of an injunction, even if the trial court merely intended to preserve the status quo in the order. See Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998). In the present case, the trial court “enjoined” Cone from seeking any and all compensation until “further order of this Court or any other Court of competent jurisdiction.” Clearly, the language of the order is injunctive in nature. Appellee concedes that the trial court did not comply with rule 1.610. Accordingly, we REVERSE the order and QUASH the injunction.

Lesson learned:

Just because you've figured out the underlying substantive trust or probate law doesn't mean you can't get tripped up on the civil procedure.

Former PR refuses to answer deposition questions -- successfully claims 5th Amendment right against self incrimination.

Pisciotti v. Stephens, 2006 WL 3077750 (Fla.App. 4 Dist. Nov 01, 2006)

I plead the Fifth!!! Ahh, those immortal words of American jurisprudence.  Well, if you thought your friends in the criminal defense bar were the only ones who got to have fun with this bit of legal jargon . . . think again.  In this case brother figures out sister may have stolen a few checks while mom was alive.  Brother filed an adversary proceeding to remove sister as PR of mom's estate and then sued sister for theft.  Brother then gets an order from probate court requiring sister to answer deposition questions and file a final accounting . . . overruling sister's refusals based on her Fifth Amendment constitutional right against self-incrimination.  Wrong answer says the 4th DCA, which reversed the probate court's order on both counts.  Here are a couple of key excerpts from the 4th DCA's opinion:

Sister's first argument on appeal is that the trial court's order requiring her to answer deposition questions violates her Fifth Amendment privilege against self-incrimination, particularly in light of her brother's comments regarding criminal prosecution of her. We agree.


Here, given the potentially incriminating nature of the evidence, coupled with brother's professed intent to seek criminal prosecution, sister had reasonable grounds to fear that her deposition testimony could be used as a link in a chain of evidence against her in a later criminal proceeding.  .  .  .  Thus, in this case the trial court failed to recognize that there was a reasonable possibility of prosecution, and ultimately applied the wrong law.

Second, sister argues that the trial court's order requiring her to file final accountings also violates her Fifth Amendment privilege. Generally, the privilege does not apply to documents that are required under the law to be prepared by a PR to carry out a fiduciary duty. [In re Rasmussen, 335 So.2d 634, 636 (Fla. 1st DCA 1975)].

Yet given the fundamental nature of the Fifth Amendment's constitutional guarantees, we perceive grave difficulties in applying the privilege to the deposition questions but not to the related final accountings. To refuse to apply the privilege to the order for a final accounting document in this case would have the rather perverse effect of protecting sister from giving testimonial answers conceivably providing a link in the chain of evidence but then refusing the same protection by requiring her to file accountings yielding the same information. Because of the facts and circumstances of this case, we distinguish Rasmussen.

Yes - putting your condo in your revocable trust really means something.

Aronson v. Aronson, 930 So.2d 766, 31 Fla. L. Weekly D1317 (Fla. 3d DCA May 10, 2006)

Revocable trusts are widely used in Florida for estate planning purposes.  The standard procedure is to title large assets in the name of the revocable trust to avoid having to probate those assets when the settlor dies and also to make it easier for a successor trustee to administer those assets for the benefit of an incapacitated settlor.  On the other hand, because clients can change or "revoke" their revocable trusts at any time and revocable trusts offer zero asset protection from creditors, some may feel that titling assets in the name of the trust is a technical matter with no real-life significance.  Wrong answer . . .  as demonstrated by this case.

Mr. Aronson titled his condo located on Key Biscayne (read: $500,000+ FMV real estate) in July of 1996 to his revocable trust.  I'm assuming this trust mostly favored his children.  A few months later, in December of 1996 Mr. Aronson deeded this same condo to his second wife.  Perhaps inevitably, Mr. Aronson's children and second wife ended up in litigation over who owns the condo: the trust or second wife?  At trial, the court ruled in favor of second wife.  On appeal, the 3d DCA reversed, ruling that an individual can't deed a property in his individual capacity if he's previously deeded it over to his revocable trust, even if he had the authority at any time to revoke his own trust.  The following are a few excerpts from the 3d DCA's opinion:

Here, the Settlor executed a warranty deed conveying the property to himself, as trustee. Thus, the Settlor, in his capacity as trustee, became the legal title holder of the trust property. See Buerki, 570 So.2d at 1063. Once the Settlor held the property as trustee, for the benefit of the beneficiaries of the trust, he no longer possessed the power to convey the property in his individual capacity.

*     *     *     *     *

However, assuming that the Trust reserved to the Settlor and the Trustee certain powers to dispose of trust assets, there is no question that Mr. Aronson failed to withdraw the property in strict compliance with the Trust instrument as it required the Settlor to deliver a written document to the Trustee in order to withdraw the Trust assets. See Bongaards, 793 N.E.2d at 339. Instead, Mr. Aronson conveyed real property in his individual capacity, which he did not legally own in that capacity. Accordingly, the subsequent transfer was invalid as a matter of law.

We need not and, indeed, cannot attempt to glean Mr. Aronson's intent in transferring the property to the trust, or subsequently to Ms. Aronson in his individual capacity. Here, there was no ambiguity in either the original transfer of the property to the Trust by warranty deed or the subsequent transfer of the property to Ms. Aronson by quit claim deed. See Dolphins Plus, Inc. v. Hobdy, 650 So.2d 213, 214 (Fla. 3d DCA 1995)(noting that unambiguous language of a written instrument is not subject to judicial construction or interpretation). Having created a valid trust and being familiar with the powers he retained therein, as well as the law in this area, Appellants contend that Mr. Aronson's intent was to appease his second wife and effectuate a sham transaction he knew to be legally invalid. Conversely, it is argued that Ms. Aronson was the natural object of Mr. Aronson's bounty and that the subsequent transfer must be held to be valid to give meaning to Mr. Aronson's actions. These and other explanations may exist in attempting to ascertain the true motive behind Mr. Aronson's actions. However, the choice of any particular scenario to explain and give meaning to Mr. Aronson's intent involves guesswork that is not likely to produce enduring legal principles under which to consider future cases.

How NOT to make a foreign trustee pay Florida probate expenses

In re Estate of Stisser, 932 So.2d 400, 31 Fla. L. Weekly D1008 (Fla. 2d DCA Apr 07, 2006)

Technical issues such as whether a Florida court has in rem jurisdiction over a matter or whether in personam jurisdiction is required can have huge impacts on how a case is litigated.  In this case, the outcome of that question determined whether a Florida personal representative was forced to sue the successor trustee of the decedent's revocable trust for payment of expenses and taxes in Florida or Minnesota.  The PR won the argument before the probate court, even though the trust was administered in Minnesota by an individual trustee residing in Minnesota containing trust assets that apparently were located in Minnesota.  Based on these facts, I don't see how the probate court concluded that it had in rem jurisdiction over the trust -- none of the assets were located in Florida.  On appeal, the 2d DCA reversed

The 2d DCA got to the right result, but its expressed reasoning is flawed because it fails to zero in on the single key issue before it: was the lawsuit limited solely to questions involving the parties' rights over property in Florida or was the lawsuit seeking to impose a judgment directly against a person or party?  Instead the 2d DCA framed its opinion in terms of an "indispensable party" analysis.  For the record, here's how the 2d DCA expressed its reasoning:

[T]he probate court could not enter such a ruling in the absence of the Cotrustees. “‘The law is settled that, in suits against the trustee affecting trust property, the trustees as well as the cestuis que trustent should be made parties defendant.’ ” First Nat'l Bank of Hollywood v. Broward Nat'l Bank of Fort Lauderdale, 265 So.2d 377, 378 (Fla. 4th DCA 1972) (quoting Griley v. Marion Mortgage Co., 132 Fla. 299, 182 So. 297, 300 (1937)).  The general rule is that a “trustee is an indispensable party in all proceedings affecting the estate.” Id. Yet, in the instant case, both the probate court and the parties appeared to agree that the court did not have personal jurisdiction over the Cotrustees. The probate court stated that it did not require personal jurisdiction over the Cotrustees and proceeded without it in the mistaken belief that it had in rem jurisdiction, which it believed was sufficient. Stisser conceded at the hearing that the probate court did not have personal jurisdiction over the Cotrustees.

Given the fact that the law requires the probate court to have personal jurisdiction over the Cotrustees of a trust in order to enter a ruling affecting the corpus of the trust and given the fact that the court lacked such jurisdiction over the Cotrustees, the probate court was without authority to rule on the complaint filed by Stisser. We conclude therefore that the probate court erred in denying the Cotrustees' motion to quash service of process and in taking jurisdiction over the instant case. Accordingly, we reverse.

Court says YES to widow's enforcement of decedesed husband's workers' comp' settlement agreement

Estate of Gunderson v. School Dist. of Hillsborough County, 2006 WL 2612678 (Fla. 1st DCA Sept. 13, 2006)

Apparently the Hillsborough County School District wanted to get out of a $52,808 workers'-comp' settlement agreement in the worst way possible.  The decedent in this case signed the settlement agreement -- then died before signing the general release agreed to as part of the deal.  When the decedent's widow sought to enforce the settlement agreement, the School District told her to take a hike.  Widow lost this argument before the probate court!  (Just goes to show, nothing is ever certain in litigation . . . even if the legal issues are a slum dunk in your favor.)

Widow then appealed the probate court's order - and won on appeal.  The 1st DCA reversed the probate court's order and rejected the School Board's two arguments for non-enforcement.  The School Board had argued that the settlement agreement was unenforceable (1) because execution of the general release - by the decedent - was a condition to the formation of a contract between the parties, and (2) the settlement agreement was a personal services contract that could only be performed by the decedent - because only he could sign the general release.  The 1st DCA unequivocally rejected both of these arguments.  The following excerpts from the linked-to opinion reflect the 1st DCA's rationale on both counts:

In defense of its failure to perform the settlement agreement, the E/C asserts that the deceased's execution of the general release and voluntary resignation were either conditions precedent or conditions subsequent to the formation of a valid contract and, thus, the failure to execute the documents renders the settlement agreement non-binding. This argument is without merit. Provisions of a contract will only be considered conditions precedent or subsequent where the express wording of the disputed provision conditions formation of a contract and or performance of the contract on the completion of the conditions. [Citations omitted.]  No such wording exists in the disputed contractual provisions.

*     *     *     *     *

The general rule is that contracts for personal services contain an implied condition that such contracts dissolve at the time of the contractor's death. See CNA Int'l Reinsurance Co., Ltd. v. Phoenix, 678 So.2d 378, 380 (Fla. 1st DCA 1996). Restatement (Second) of Contracts § 262 defines a contract for “personal services” as a contract where the existence of a particular person is necessary for the performance of a duty. In addition, section 733.612(2), Florida Statutes (2004), authorizes a personal representative to “perform or compromise, or when proper, refuse to perform, the decedent's contracts····” Similarly, section 733.612(24), Florida Statutes (2004), authorizes a personal representative to “satisfy and settle claims.”  .  .  .  The duty of performance on the claimant's part was a duty which could statutorily be performed by his representative in the event of his death through the effectuation of the necessary documents. These were not duties which the claimant's death rendered impossible to perform.  .  .  .  More importantly, the death of a claimant following the execution of a settlement agreement will not affect the agreement's enforcement if the personal representative can show that a binding contract was reached. See Jacobson v. Ross Stores, 882 So.2d 431 (Fla. 1st DCA 2004).

[Emphasis added.]

Another Trust-Litigation Venue Case

Weinberg v. Weinberg, 2006 WL 2265216, 31 Fla. L. Weekly D2094 (Fla.App. 4 Dist. Aug 09, 2006)

Is it just me, or does it seem like venue has all of a sudden become a hot topic in trust litigation?  I wrote previously about recent trust-litigation venue rulings here and here.  Well, you can add this case to the list as well.  Here the 4th DCA has weighed in on the subject in the context of a dispute involving a lawsuit by the adult-children-of-first-marriage against second wife, who revoked a trust in Palm Beach County then moved south to Miami-Dade County.  The kids sued her in Palm Beach County.  Second wife argued that since she was presently residing in Miami-Dade County, the lawsuit against her in Palm Beach County should be dismissed on venue grounds.  The trial court denied her motion, and she appealed.  On appeal the 4th DCA upheld the trial court's decision citing to the following set of facts as grounds for its ruling:

In this case, Palm Beach County was the situs of the trust and its assets, the trust was administered in Palm Beach County before Betty purported to revoke it, and the distributions would have been made by the trustee in Palm Beach County upon Sidney's death. When Betty attempted to revoke the trust in its entirety and take title to all of the trust property, the last event necessary to make her liable for breach of trust took place. That is where the injury to the sons first took place. We therefore hold that the cause of action for breach of trust accrued in Palm Beach County, where Betty purported to revoke the trust.

Our resolution of this issue makes it unnecessary to decide whether venue was proper on any other basis.

Lesson Learned:

I found it interesting that the 4th DCA never mentions Florida's trust-litigation venue statute (F.S. 737.202).  Regardless, this case underscores the level of scrutiny courts will apply to the unique facts of a case when determining venue disputes.  It seems to me that the party that most persuasively argues the facts establishing a clear link between its favored venue and the facts directly underlying the cause of action being litigated is most likely to win.

Estate lawyer's activities queried

In Florida, trustees and personal representatives have an affirmative statutory duty to keep trust and estate beneficiaries informed (see new Ch. 736 for trustees; 733.602 and 733.604 for PRs).  Additionally, being pro-active, let alone responsive, with respect to keeping everyone informed is probably the cheapest way to avoid getting sued by the beneficiaries, a point underscored in this newspaper article.  The following is an excerpt from the linked-to article:

Friday, August 18, 2006

AMHERST - When William J. Bernotas shot his estranged wife Jean Hosmer to death in front of the Northampton police station in 1999 and then turned the gun on himself, he left their two children orphans.

One of Hosmer's sisters came forward to take care of Sandra and Kevin Bernotas, but their estate was entrusted to Amherst lawyer Nancy J. Sardeson.

Now the family has questions about how the estate has been managed and Sardeson has been suspended from practicing law for failing to provide the answers.

Use of Power of Attorney to Prey on Elderly

Conseco Ins. Co. v. Clark, 2006 WL 2024401 (M.D.Fla. Jul 17, 2006) (NO. 8:06CV462 T30EAJ)

Exploitation of the elderly is endemic.  This case provides a good road map for probate litigators involved in cases where the decedent was victimized by his or her power-of-attorney holder, with the facts coming to light in the context of probate proceedings.

If someone has taken the time to prepare estate planning documents, a power of attorney is usually part of the package.  But my sense is that the POA usually doesn't receive the level of scrutiny is should -- especially when it comes to retirees who move to Florida and detach themselves from the web of family and friends that looked after and supported them "back home."

The victim in this case was Anthony Jeski, who was 89 years old when he died in 2005 the resident of a Florida nursing home.  Myra Clark acted as Mr. Jeski's power of attorney from 1997 to 2005.  Originally, the sole remainder beneficiary of Mr. Jeski's seven annuity contracts (paying $342,177.58 at his death), revocable trust, which contained $40,000 at his death,  a Prudential insurance contract whose value was unreported, and the heir who would receive title to his $158,000 condominium, was Mr. Jeski's nephew Joseph Dal Campo.  This all changed in 2002, when Ms. Clark used the power of attorney to write Mr. Campo out, and write herself in, as sole beneficiary of all of the annuity contracts, the revocable trust, the insurance policy, and last but not least, quit claim the condo to herself for $11.00.  Oh, and guess who was the agent that sold Mr. Jeski his annuity contracts?  Ms. Clark's husband.

Confronted with this set of facts, litigation counsel for Mr. Campo could pursue a number of different strategies.  In this case, Mr. Campo pursued the following claims, all of which were essentially "blessed" by the trial court.

  • Breach of Fiduciary Duty.  Key point here was that the trial court held that Mr. Campo was an "interested person" with respect to his uncle's power of attorney, and thus Ms. Clark owed him the same fiduciary duties applicable to trustees in Florida.
  • Fraud.  The trial court dismissed this claim, but hinted strongly that if the plaintiff could allege facts showing he had himself relied upon fraudulent statements made by Ms. Clark, then the claim could proceed.
  • Civil Conspiracy.  The trial court let this claim proceed.  Key point being that Ms. Clark's husband was thus brought into the case as a named defendant.
  • Exploitation of an Elderly Person.  The trial court dismissed this claim with instructions to the plaintiff on how to replead the claim, hinting again that the judge was predisposed to let this count proceed.  This can be a very powerful weapon, because by statute the successful plaintiff is entitled to treble damages and his attorney's fees.  See Counsel Beware: Considerations Before Implementing Florida’s Civil Theft Statute for a good summary of what trial counsel needs to know with respect to asserting these types of claims.
  • Tortious Interference with Expectancy.  The trial court let this count proceed with respect to all non-probate assets (i.e., everything except the condo).  This is an important weapon to keep handy when most if not all of the key assets in dispute fall outside of the probate court's jurisdiction.

For an interesting non-Florida case dealing with legal and ethical issues surrounding the drafting of a power of attorney see In re Winthrop, 848 N.E.2d 961 (Ill. 2006), and a related discussion of the case in Helen Gunnarson's article, POA Perils, 94 Ill. B.J. 403 (2006), in which she concludes as follows:

The complexity of the proceeding does . . . suggest that reinventing the wheel when it comes to drafting powers of attorney may be unwise. Even more important, an attorney would be well advised to exercise extra caution when a third party initiates a request for the attorney to draft an instrument for an elderly person.

Venue and Trust Litigation

Meyer v. Meyer, __ So.2d __, 2006 WL 1708155 (Fla. 5th DCA June 23, 2006) 

Venue rulings can be powerful tools in litigation. Requiring parties to drop their lawsuit in one state and re-file in another (in this case New York) may sound like a minor inconvenience, but the real life implications are significant. A party seeking to enforce his or her rights under a Florida-law governed trust in another state must now hire two sets of lawyers: local counsel to file the initial complaint and navigate the civil procedure requirements of that jurisdiction plus Florida counsel to educate a probate judge in another state regarding what can be very complicated and state-specific Florida trust laws.

In this case an alleged beneficiary of the trust filed a petition in Florida seeking construction of a Florida-law governed trust. The trial court denied a motion to dismiss on venue grounds under F.S. § 737.203. The trial court was reversed by the Fifth DCA. The most significant aspect of the Fifth DCA’s opinion is that it basically maps out the factual allegations a party seeking to keep an action involving a Florida-law governed trust in this state should prove.

Here, the trust is being administered in New York where the trustee resides. None of the parties has any connection with the state of Florida, and we note that the petition filed by Laurie does not contain any factual allegations showing that venue properly lies in this state. Because a proper objection has been filed by parties who are beneficiaries of the trust protesting the proceedings by the Florida court concerning a trust registered or having its principal place of administration in New York, the trial court should have properly applied the dictates of section 737.203. We are unable to determine whether this is what the trial court did because it simply denied the motion to dismiss without revealing the basis for its denial. Accordingly, we reverse the order denying the motion to dismiss and remand for the purpose of allowing the trial court to determine whether all interested parties could be bound by litigation in New York. Perry. If the trial court finds the parties may be bound by New York litigation, “the court shall continue, stay, or dismiss the suit” filed by Laurie. Perry, 903 So.2d at 377. If the parties are not bound, the court may deny the motion to dismiss.

We note, parenthetically, that although the trust agreement contains a choice of law provision, it does not designate Florida as the principal place for administration of the trust. Unless specified in the trust agreement, the “principal place of administration of a trust” is “the trustee's usual place of business where the records pertaining to the trust are kept or, if he or she has no place of business, the trustee's residence.” § 737 .101(1), Fla. Stat. (2005). Accordingly, New York is the principal place for administration of the trust because the trustee is a resident of that state and the trustee's attorney for legal matters pertaining to the trust is also in New York.

Unclaimed Property: When in Doubt, Who Gets It?

In re Estate of Faskowitz, __ So.2d __ (Fla. 2d DCA Mar 31, 2006)

The decedent left no surviving spouse or lineal descendants. At a hearing on a petition for determination of heirs, Highlands County Probate Judge J. David Langford ruled that the petitioners were the decedent's paternal heirs, and thus entitled to one-half of the estate. So far, so good. The probate court then went on to rule that because no evidence had been presented by the alleged paternal heirs that no maternal heirs existed, one-half of the estate would be held by the clerk of the court in accordance with F.S. § 733.816 for the unknown maternal kindred, where presumably it would escheat to the State if no maternal heirs claimed the funds within the 10-year claims period. This is where the probate court got it wrong.

The Second DCA reversed the probate court's ruling regarding the half of the estate set aside for the decedent's maternal kindred, providing the following excellent summary of the statutory framework governing unclaimed assets in Florida probate proceedings:

Under section 732.103(4)(c), "[i]f there is no paternal kindred or if there is no maternal kindred, the estate shall go to such of the kindred as shall survive." Pursuant to this provision, in the absence of any maternal kindred of Irving Faskowitz, his paternal kindred-- namely, the appellant and his sisters--are entitled to inherit the whole estate. The State does not have a right to half of an intestate estate when there are lawful heirs under section 732.103. The two specific provisions of the Florida Probate Code governing the escheat of estate property--sections 732.107 and 733.816--do not in any way displace the rule of descent set forth in section 732.103(4)(c).

Section 732.107(1) simply provides that "[w]hen a person leaving an estate dies without being survived by any person entitled to it, the property shall escheat to the state." [FN1] Here, the paternal kindred have established their status as lawful heirs under section 732.103(4)(c). Accordingly, the predicate for the operation of 732.107(1) --that "a person leaving an estate [has] die[d] without being survived by any person entitled to it"--does not exist in this case.

Similarly, the provisions of section 733.816 concerning the disposition of unclaimed property held by personal representatives do not defeat the rights the paternal kindred here have under section 732.103(4)(c). Section 733.816(1) addresses circumstances where "unclaimed property in the hands of a personal representative ... cannot be distributed or paid ... because of inability to find [the lawful owner] or because no lawful owner is known." Neither of these circumstances have been established here. Unless it is shown that there are maternal kindred entitled to inherit from the estate, the paternal kindred are the "lawful owner[s]" of the entire estate. Contrary to the trial court's ruling, there is nothing in the statutory scheme suggesting that once claimants have established their status as lawful heirs the State is entitled to escheat of a portion of the estate simply because there is uncertainty concerning whether there may be other lawful heirs.

Based on the clear language of the governing statutes, the Second DCA dismissed the probate court's evidentiary burden-shifting ruling as follows:

Nothing in the case law cited by the appellees undermines this straightforward interpretation of the relevant statutory provisions. The appellees rely primarily on two cases to support the trial court's ruling. The appellees cite In re Estate of Tim, 180 So.2d 161 (Fla.1965), and In re Estate of Russell, 387 So.2d 487 (Fla. 2d DCA 1980), for the proposition that the paternal heirs had the burden of proving the nonexistence of maternal heirs in order to avoid the operation of the statutory provisions providing for escheat of unclaimed estate property. Neither Estate of Tim nor Estate of Russell supports the position advanced by the appellees.

Court to Pro Se Litigant: "Go Hire a Lawyer"

Benedetto v. Columbia Park Healthcare Systems, __ So.2d __ (Fla. 5th DCA Mar 10, 2006)

The question of whether a person should be required to hire a lawyer if he or she wants to petition a court to probate a will has been the subject of a good amount of blogosphere commentary lately. Texas law professor Gerry W. Beyer has covered the issue on his blog Wills, Trusts & Estates Prof Blog (see here, here, and here) and Chicago-area probate attorney Joel A. Schoenmeyer has done the same on his blog Death and Taxes - The Blog (see here and here).

In Florida, the answer is simple: with limited exceptions, every guardian and personal representative MUST hire a lawyer. That's the lesson to be drawn from the Fifth DCA opinion cited above. In this case the Fifth DCA was unable to tell from the record on appeal whether the personal representative was the "sole interested person" in the estate (thus qualifying for the exception to the general rule requiring representation) or not. If the personal representative was not the "sole interested person" in the estate, then his appeal was subject to dismissal. Here's how the Fifth DCA explained the law in Florida on this point:

Florida Rule of Probate Procedure 5.030(a) provides in relevant part as follows:

(a) Required; Exception. Every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative.

Because an independent action on behalf of an estate is ancillary to the estate administration, this rule governs both the estate administration itself and any independent proceedings prosecuted or defended by the estate. Thus, unless Appellant is the "sole interested person," as defined by law, he is precluded from maintaining this appeal without counsel. See, Dimitroff v. Taylor, 651 So.2d 131 (Fla. 2d DCA 1995). See also § 731.201(21), Fla. Stat. (2005) (defining "interested person").

Is Standing to Sue a Substantive or Procedural Matter for Choice of Law Purposes? Forth DCA Says It's Substantive

Siegel v. Novak, 2006 WL 119545 (Fla. 4th DCA Jan 18, 2006)

Probate litigation is often rife with conflict of law issues. For example, it is not uncommon to have a trust governed by the law of one jurisdiction (e.g., Florida law) administered in another jurisdiction (e.g., New York). In this case the parties were litigating whether the decedent's sons had standing to challenge trust disbursements made from their mother's revocable trust prior to her death. Both sides agreed New York law applied to the trust accounting issue. The point of contention arouse around standing. Under New York law the sons had standing to sue, under Florida law they apparently did not.

Question for Florida Court: Does New York law apply to the standing issue or does Florida law apply? In other words, is standing to sue a substantive or procedural matter for choice of law purposes?

Palm Beach County Judge Gary L. Vonhof ruled the decedent's sons lacked standing under Florida law and thus dismissed their claims on summary judgment. The Fourth DCA reversed holding that standing is a substantive matter for choice of law purposes, thus New York law applied because New York bore the most significant relationship to the trust, thus the decedent's sons had standing to sue. The Fourth DCA explained its ruling as follows:

"In a choice of law context, Florida maintains the traditional distinction between substantive and procedural matters." "As the forum state in this case, Florida law determines whether [the issue of standing] is substantive or procedural for choice of law purposes." Generally, when confronted by a choice of law problem, a court will apply foreign law when it deals with the substance of the case and will apply the forum's law to matters of procedure. Substantive law generally relates to the rights and duties of a cause of action, while procedural law involves the "'machinery for carrying on the suit.'".

No Florida case has decided whether standing is a substantive or procedural matter for choice of law purposes. Recently, the eleventh circuit has indicated that "[u]nder Florida's choice of law provisions, Florida law governs all substantive issues, including the question of whether an individual has standing and capacity to sue." In Merkle v. Robinson, 737 So.2d 540, 542 (Fla.1999), the Florida Supreme Court held that "statute of limitation choice of law questions [should be treated] the same as 'substantive' choice of law questions which,···· Florida decides pursuant to the 'significant relationship' test."

In this area, the question of standing to assert a claim is analogous to a statute of limitations defense. Both issues relate to whether a cause of action may proceed; neither involves the "machinery for carrying on the suit" once the right to proceed has been determined. The ability to bring an action at law is a "most valuable attribute" of a legal right, a factor favoring the classification of standing as a substantive matter.

Here, the right of the [decedent's sons] to challenge the distributions from the trust should be decided under New York law. For the challenged distributions, New York bears the most significant relationship to the trust.

(Emphasis added; internal citations omitted.)

Yes . . . Those Pesky Beneficiary Designation Forms Actually Matter!!

Smith v. Smith, 2005 WL 3439889, 30 Fla. L. Weekly D2845 (Fla. 5th DCA Dec. 16, 2005)

Both in the divorce context and for estate planning purposes, reviewing beneficiary designation forms for insurance policies, IRAs, and pension plan benefits is one of those "to do" items that often gets left to the end. Well, this case should be the sort of "cautionary tale" you may want to share with those clients who never quite get around to signing their change of beneficiary designation forms.

As part of Mr. and Mrs. Smith (that's their real names) divorce, they signed a marital settlement agreement (prepared by Mrs. Smith) splitting everything up including, at least they thought, their respective insurance policies, IRAs and pension plans. Unfortunately for the beneficiaries of Mr. Smith's estate, he sat on the change of beneficiary designation forms for a year and half before he died - without having executed the forms (oops!). Seminole County Trial Judge Nancy F. Alley sided with Mr. Smith's estate, and ruled that the marital agreement was enough all by itself to entitle the estate to the disputed funds generated by Mr. Smith's life insurance policies and retirement plan benefits.

The Fifth DCA said not so fast, reversing the trial judge based on the following:

In Cooper v. Muccitelli, 661 So.2d 52 (Fla. 2d DCA 1995) ("Cooper I"), the Second District Court of Appeal held that "without specific reference in a property settlement agreement to life insurance proceeds, the beneficiary of the proceeds is determined by looking only to the insurance contract." Id. at 54. The Florida Supreme Court affirmed, saying that a contrary holding would put insurance companies in an "impossible position." Cooper v. Muccitelli, 682 So.2d 77, 79 (Fla.1996) (" Cooper II"). The high court pointed out that despite specific and clearly worded language in an insurance contract, a carrier could never be certain to whom to pay the proceeds. The lesson from Cooper I and Cooper II is that while it may be possible in a marital settlement agreement to waive one's right as a beneficiary of insurance policies, that waiver can only be accomplished if the waiving party specifically gives up his or her rights to the "proceeds" of these policies.FN1 Otherwise, one must look only to the beneficiary designation made by the insured and filed with the insurer.

In the present, case the marital settlement agreement fails to make specific reference to the proceeds of the life insurance policy in question, and the decedent, in the words of the Florida Supreme Court in Cooper II,"did just what he needed to ensure that the proceeds would go to [Ms. Smith]-he did nothing." Cooper II, 682 So.2d at 79. He had a year and a half to execute change of beneficiary forms as required by his policy of insurance, but for whatever reason, he did not do so. Thus, Ms. Smith is entitled to the proceeds of the life insurance policies. (Emphasis added.)

FN1. Obviously some other language such as "death benefits" would likely suffice.

The Fifth DCA came to the same conclusion with respect to the decedent's IRAs and pension plan benefits: no change of beneficiary form means the disputed funds go to the original beneficiary - Mr. Smith's ex-wife.

Newsflash to Probate Bar: Even in Probate Proceedings Due Process Rights Still Mean Something

Fleming v. Demps, 2005 WL 3481367 (Fla. 2d DCA Dec 21, 2005)

In this case there was a dispute regarding whether $317,000 in a certain bank account belonged to the probate estate or the decedent's niece, Ms. Henrietta Fleming, the designated beneficiary of the account. This is the sort of issue probate judges deal with every day. Which may explain in part why Hillsborough Judge Rex Martin Barbas felt it was OK to enter a final judgment ruling in favor of the estate and against Ms. Fleming without conducting an evidentiary hearing.

Ms. Fleming appealed, and the Second DCA reversed the trial judge on the following due-process grounds:

Concerning the lack of an opportunity to be heard prior to entry of the final judgment, "[d]ue process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, and the denial of this right is fundamental error." Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998) (citations omitted); see also Pope v. Pope, 901 So.2d 352, 353-54 (Fla. 1st DCA 2005) (same); Hinton v. Gold, 813 So.2d 1057, 1060 (Fla. 4th DCA 2002) (same). Here, the personal representative's motion of March 1, 2004, to determine who is the rightful owner of the funds and whether the funds should be administered as estate assets or otherwise distributed to the proper owner was resolved without giving Ms. Fleming any opportunity to be heard and to present evidence on the issues. (Emphasis added.)

Lesson Learned:

The probate-administration process is often criticized as being too slow and costly. In contested proceedings, this criticism can conflict with basic notions of fairness underlying every Floridian's due process rights. Hopefully the parties (and the trial judge) will realize this without having to incur the extra cost and expense associated with appellate proceedings.

11th Circuit Estate-Tax Case: "Substantially Modified" Buy-Sell Agreement

Estate of Blount v. C.I.R., --- F.3d ----, 2005 WL 2838478 (11th Cir. Oct 31, 2005)

Buy-sell agreements are often used in business succession planning to fix the fair market value of a closely held business interest for gift and estate tax purposes. In this case the decedent, George C. Blount (founder of Blount Construction Company), executed an amendment to his 1981 buy-sell agreement in November of 1996, about one month after being diagnosed with cancer and a little under a year prior to his death in September of 1997. After his death the IRS successfully challenged the tax-planning effectiveness of the buy-sell agreement on grounds that came into play only because the agreement had been "substantially modified" after October 8. 1990.

Two Key Points:

  • Always exercise extreme caution when revising any buy-sell agreement entered into before October 8, 1990 because of the IRS's aggressiveness in disallowing estate-tax valuation discounts if the agreement was "substantially modified" after that date.
  • If a closely-held business purchases life insurance to fund a buy-sell agreement obligation, the value of those insurance proceeds may not be counted for purposes of establishing the estate-tax value of the business.

How often may a probate judge rule on the issue of "family allowance"? As often as necessary.

Valdes v. Estate of Valdes, 2005 WL 2861179 (Fla. 3d DCA Nov. 2, 2005)

Ambiguity is the bane of a probate practitioners life. When the answers are clear, opposing parties are able to define their positions with certainty and usually come to some sort of negotiated compromise without the need for expensive litigation. When the law is "fuzzy," litigation is often the only tool available to achieve clarity.

Which is why the concrete, unambiguous, nuts-and-bolts guidance provided by the Third DCA in this case should be welcomed. Here the key legal question was the following: may a probate judge revisit earlier decisions setting the amount of reasonable family allowance? Miami-Dade Probate Judge Arthur Rothenberg said YES, and was upheld on appeal (although his second ruling reducing the amount of family allowance was reversed). The appellate court provided the following summary of the law:

Section 732.403 authorizes a probate court to award a "reasonable allowance" out of the money of the estate for the benefit of a surviving spouse or lineal heirs the decedent was supporting or was obligated to support during administration of the estate. § 732.403, Fla. Stat. A surviving spouse and qualified lineal descendant are "entitled" to a family allowance without regard to the necessity of the allowance. DeSmidt v. DeSmidt, 563 So.2d 193, 194 (Fla. 2d DCA 1990). However, the reasonableness of the allowance must still be established. Id. As such, we conclude the probate court necessarily retains the authority to re-examine and modify an award, either upward or downward as circumstances may require, during the course of administration of the estate. Id.

Mom's estate successfully sues daughter for return of $84,000 taken from joint account prior to mom's death

Sandler v. Jaffe, 2005 WL 2655765 (Fla. 4th DCA Oct. 19, 2005)

Elderly parents often title bank accounts jointly with their children. Although extremely common, the problem with this type of arrangement is that the temptation to walk away with some of mom or dad's funds can sometimes be irresistible. This case is a prime example of that risk.

Facts: Concerned about possible incapacity issues arising out of her advanced age, mom titled all her bank accounts jointly with her daughter; daughter then transferred $84,000 from one of these joint accounts to an account titled in the name of her own husband and daughter (the family dynamics of this case are "interesting" to say the least). Mom finds out about transfer, sues daughter for return of funds, then dies while lawsuit is pending. Mom's other child, son, carries on with suit as personal representative of mom's estate.

Key points of the case:

  • Daughter argued that F.S. § 655.78(1) absolved her from any liability. The 4th DCA rejected this argument, noting that this statute is intended to protect banks from getting drawn into disputes between title holders of an account. It in no way shields joint title holders from liability for their own actions.
  • Daughter argued that since she was a joint title-holder with right of survivorship, she was entitled to all of the funds at mom's death anyway or, in the alternative, mom gifted all of these funds to her when she titled the bank accounts jointly. So no harm done. These arguments failed because mom actually found out about the transfers pre-death and sued for their return.

Lesson learned:

Obviously mom was trying to plan for her incapacity; she certainly never intended to gift all of her estate to her daughter at the expense of her son. Joint bank accounts are a clumsy way of planning for incapacity and often run afoul of the "Trust, but verify" maxim. Revocable trusts are a much better alternative.

Probate litigator successfully spots substantive issues, but falls flat on civil procedure

Herskovitz v. Hershkovich, 2005 WL 2254003, 30 Fla. L. Weekly D2209 (Fla. 5th DCA Sept. 16, 2005) (Trial Court Affirmed)

This case is yet another example of why probate litigation can be especially challenging. Not only must counsel in these cases have the ability to quickly spot the often highly technical probate-law issues in play in the relatively short period of time permitted to challenge a will in probate, he or she must also be sufficiently knowledgeable in civil procedure and trial techniques to successfully venture into the litigation arena.

The decedent's surviving brother in this case challenged the validity of a second codicil to his brother's will (which completely cut him out of the estate) on the grounds that the two attesting witnesses to that codicil were unaware of the testamentary nature of the instrument they were signing. In other words, counsel for surviving brother correctly identified a substantive issue under Florida probate law that favored his client. Counsel made this argument when he successfully opposed a summary judgment motion filed by the surviving spouse. So far, so good. Unfortunately, counsel failed to make this argument again when the probate court conducted an evidentiary hearing on the matter . . . thereby waiving the issue on appeal. The Fifth District Court of Appeal summed up its ruling on this point as follows:

In [his memorandum opposing summary judgement, surviving brother] contended questions of fact existed as to whether the witnesses could authenticate the documents. Subsequently, the trial court denied [surviving spouse's] motion for summary judgment. Once the summary judgment was denied, it was incumbent upon [surviving brother] to present whatever arguments and documents he believed relevant to determining those questions of fact to the trial court at the evidentiary hearing. By failing to do so, he waived this issue for appellate review.

This I Believe: Always Go to the Funeral

When I first started out as a trusts and estates lawyer one of the senior partners at my firm gave me some very good advice. He told me that if you're ever unsure about visiting someone at the hospital or going to a funeral . . . always opt for showing up. This report on NPR's "This I Believe" series reminded me of that wise advice. The following are a few highlights from that piece:

I believe in always going to the funeral. My father taught me that.

The first time he said it directly to me, I was 16 and trying to get out of going to calling hours for Miss Emerson, my old fifth grade math teacher. I did not want to go. My father was unequivocal. "Dee," he said, "you're going. Always go to the funeral. Do it for the family."

Sounds simple -- when someone dies, get in your car and go to calling hours or the funeral. That, I can do. But I think a personal philosophy of going to funerals means more than that.

"Always go to the funeral" means that I have to do the right thing when I really, really don't feel like it. I have to remind myself of it when I could make some small gesture, but I don't really have to and I definitely don't want to. I'm talking about those things that represent only inconvenience to me, but the world to the other guy. You know, the painfully under-attended birthday party. The hospital visit during happy hour. The Shiva call for one of my ex's uncles. In my humdrum life, the daily battle hasn't been good versus evil. It's hardly so epic. Most days, my real battle is doing good versus doing nothing.

In going to funerals, I've come to believe that while I wait to make a grand heroic gesture, I should just stick to the small inconveniences that let me share in life's inevitable, occasional calamity.

On a cold April night three years ago, my father died a quiet death from cancer. His funeral was on a Wednesday, middle of the workweek. I had been numb for days when, for some reason, during the funeral, I turned and looked back at the folks in the church. The memory of it still takes my breath away. The most human, powerful and humbling thing I've ever seen was a church at 3:00 on a Wednesday full of inconvenienced people who believe in going to the funeral.

Source: Legacy Matters Blog

Court says YES to dismissal of personal injury action based on plaintiff's failure to file a timely motion to substitute a party defendant within 90 days after a suggestion of death was filed

Martin v. Hacsi, 2005 WL 1842678 (Fla. 5th DCA August 5, 2005) (Trial Court Affirmed)

Counsel for the defendant in a personal injury action filed a motion for enforcement of Florida Rule of Civil Procedure 1.260(a) based on the plaintiff's failure to move to substitute a party defendant within 90 days after a suggestion of death was filed. Sumter County Circuit Court Judge Hale R. Stancil granted the motion and dismissed the lawsuit. On appeal, the 5th DCA affirmed, providing some very helpful guidance along the way for plaintiffs trying to figure out what to do when a defendant dies and no personal representative is appointed.

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"Specific Devisee" has standing to petition for removal of a personal representative until the moment he or she actually receives full payment; Florida Probate Rules fail to provide for service of Formal Notice on Minors

Cason v. Hammock, 2005 WL 1488650 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed)

Florida's probate code and procedural rules are designed to cut off possible litigation as soon as possible . . . whenever possible. Used wisely by an experienced probate attorney, these statutory and procedural rules are a powerful shield. On the other hand, not focusing on these seemingly mundane details exposes an estate to all the potential delays, expenses and rancor inherent to litigation.

In this case the estate was challenged on two fronts: petitions were filed seeking (1) removal of the personal representative and (2) revocation of the probate proceedings. Citrus County Judge Richard Howard denied both petitions on purely procedural grounds. In other words, the estate seemed to have successfully employed the "litigation shields" built into Florida's probate code and procedural rules. On appeal, the Fifth DCA snatched both victories away from the estate.

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Court says NO to holding personal representative personally liable for attorney's fees and costs in unsuccessful wrongful death lawsuit

Beseau v. Bhalani, 2005 WL 1488584 (Fla. 5th DCA June 24, 2005) (Trial Court Reversed)

In the underlying wrongful death suit, the defendants prevailed after a jury trial. They then obtained an order awarding attorney's fees and costs against the personal representative of the decedent's estate . . . in her individual capacity. Apparently Volusia County Judge J. David Walsh thought this was OK because the personal representative was named "individually" in the complaint's caption and she never objected. The Fifth DCA made quick work of the case pointing out that regardless of what the complaint's caption may have said, the body of the complaint made clear that the lawsuit was brought on behalf of the estate, not the individual who happened to be serving as personal representative. And if you're not a party to the lawsuit, the court can't assess a judgment against you . . . even if you don't object.

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Choice-of-law Clause Will Not Override Florida's Statutory Regime for Designating the Venue of Trust Litigation

Perry v. Agnew, 2005 WL 1397427 (Fla. 2d DCA June 15, 2005) (Trial Court Reversed)

Sometimes the best defense is a good offense. In this case, an individual trustee working out of his office in Boston, Massachusetts was sued by three beneficiaries, one of whom was a resident of Florida. The trustee moved to dismiss the complaint for improper venue under F.S. § 737.203. Charlotte County Judge Isaac Anderson, Jr. denied the trustee's motion to dismiss on two grounds, the most interesting of which was based on a finding that the trust's Florida choice-of-law provision exempted it from the application of F.S. § 737.203.

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Fourth DCA says party being sued does not have the right to complain that a terminated trust's "winding up" period is being unduly extended by the litigation

McMullin v. Beaver, 2005 WL 1278870 (Fla. 4th DCA June 1, 2005) (Trial Court Reversed)

When a trust terminates as of a certain date, it is reasonable to assume that winding up the affairs of that trust may take some time after the termination date. But what if the "winding up" process includes filing a lawsuit after the trust termination date? Indian River Circuit Court Judge Robert A. Hawley ruled that was too much, and granted final summary judgement against the plaintiff trustee, finding that the trustee lacked standing to bring the action because the trust was already terminated. Although unclear from this opinion, apparently the defendants in this case argued that the trustee was attempting to unduly extend the winding up period for the trust by commencing litigation after the trust's termination date.

The Fourth DCA disagreed, and reversed the trial court finding that the trustee did in fact have standing to file his lawsuit after the trust termination date.

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Court says AHLA nursing home arbitration clause is "void as contrary to public policy"; and even if enforceable, a health care proxy lacks authority to bind an incapacitated nursing home patient to arbitrate claims

Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th DCA May 25, 2005) (Trial Court Reversed)

In what will surely be a disturbing decision to all Florida nursing home administrators, the Fourth DCA just made it a lot tougher to avoid trials in nursing home cases. First, the Fourth DCA held that an arbitration clause administered by the American Health Lawyers Association "substantially limits the remedies created by [F.S. § 400.023(2)] and is [thus] void as contrary to public policy." Second, the Fourth DCA held that even if the AHLA's arbitration clause were enforceable, which it's not, a person acting under the health care proxy authority granted by F.S. § 765.401 can only make "health care decisions," and agreeing to arbitration is not a health care decision. If a nursing home wants to bind an incapacitated patient to a valid arbitration clause, it will have to seek the appointment of a temporary guardian pursuant to F.S. § 744.3031(1) to sign the agreement. As the concurring opinion put it . . .

If a nursing home wants to deal with someone competent to make such decisions, it has the right to seek the appointment of a guardian. For only a court appointed guardian could waive or compromise property rights, such as civil remedies in negligence or the right to trial by jury.

Previously commenced probate proceedings are not necessarily trumped by a subsequently filed lawsuit in the Circuit Court's general jurisdiction division

Kutlesic v. Estate of Mervel, 30 Fla. L. Weekly D753 (Fla. 3 DCA March 16, 2005) (Trial Court Affirmed)

The decedent allegedly promised his entire estate to his girlfriend. Unfortunately for her, he then died intestate, leaving her with nothing. Probate proceedings were commenced in 1999. In 2000 the girlfriend sued the decedent's estate on a number of grounds in the general jurisdiction division of the Circuit Court, all of which were eventually dismissed but for a "quantum meruit" claim. The estate then commenced an adversary proceeding before probate-division Judge Sidney B. Shapiro, that resulted in the girlfriend being ordered to vacate the decedent's former apartment. The Third DCA held that this ruling was not an abuse of discretion, even though the girlfriend's "quantum meruit" claim remained pending in the general jurisdiction division of the Circuit Court.

The 90-day time limit for moving to substitute parties under Florida Rule of Civil Procedure 1.260 does not apply when the personal representative of an estate dies

Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Trial Court Reversed)

Normally, Florida Rule of Civil Procedure 1.260 requires that a plaintiff be substituted in a pending lawsuit within 90 days after the original plaintiff's death is "suggested on the record." Failure to comply with this deadline results in dismissal of the pending lawsuit. In this case, the personal representative of the estate died while a medical malpractice lawsuit was pending. Pinellas County Circuit Court Judge James R. Case dismissed the pending malpractice lawsuit under Civil Procedure Rule 1.260 because the estate's successor personal representative did not file a motion for substitution within 90 days of the suggestion of death.

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Order Determining Entitlement to the Elective Share Is Not Appealable

Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).

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Newsflash to Florida Division of Retirement: Order determining "heirs" no longer exists under the probate rules

Steadman v. Department of Management Services, 2005 WL 924314 (Fla. 5 DCA April 22, 2005)

The Florida Division of Retirement wanted a court order determining an employee's heirs prior to paying survivor benefits. Only one problem. In 2003 Florida Probate Rule 5.385(c) was amended so that the terms "heirs or devises" were replaced with "beneficiaries" for purposes of the court order a person ends up with when filing a petition in circuit court pursuant to Florida Statute Section 733.105 seeking an order determining beneficiaries of an estate. Undaunted by the fact that the requested order no longer existed, the Division refused payment of the requested survivor benefits because it didn't get the order. The fact that an appeal had to be filed so that the Division would change its position is troubling to say the least. The Fifth DCA apparently shared that view, because it held that the Division's refusal to accept an order complying with the provisions of amended Rule 5.385(c) "was a gross abuse of discretion" and ordered the Division to pay the petitioner's attorney's fees.

You Can't Throw a Person in Jail for Failing to Comply with an Impossible Order

Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED)

St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate's former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth DCA reversed the trial court's order holding that Probate Rule 5.440(d) contempt proceedings require that a trial court expressly find that the removed personal representative had the present ability to comply its order.

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Formal Notice Can Be Served On An Attorney Who Has Never Appeared of Record.

Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (TRIAL COURT AFFIRMED)

The key issue in this case was whether an interested person's attorney had to actually file a notice of appearance in the probate proceedings before he or she would be deemed to be "the attorney representing [the] interested person" for purposes of Probate Rule 5.040(a)(3)(A)(i) (Formal Notice) and Probate Code Section 731.301 (Notice). Palm Beach Circuit Court Judge Mary E. Lupo ruled that filing a notice of appearance in the probate proceedings was not required.

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A Scriveners Error Shouldn't Get You Booted out of Court

Magnolia Manor, Inc. v Siegel, 866 So.2d 142 (Fla. 5th DCA Feb. 13, 2004) (TRIAL COURT REVERSED)

In a case that has been pending for years, and was already the subject of a previously published appellate opinion in which the trial court was reversed in part and directed to allow Magnolia Manor, Inc., a nursing home where the decedent's parents resided before their deaths and the sole beneficiary of the decedent's 1978 will, to offer the 1978 will for probate (see First Union Nat'l Bank of Fla., N.A. v. Estate of Byron B. Mizell, 807 So.2d 78 (Fla. 5th DCA Feb. 2001) ), Orange County Circuit Court Judge W. Rogers Turner apparently was losing his patience when he dismissed with prejudice the petition filed on behalf of Magnolia Manor for apparently minor drafting errors committed by its counsel. The trial court dismissed the petition because the attorney who had prepared the papers had named himself as the "petitioner," which was unfortunate for all concerned because the filing attorney was not himself an "interested party" under Section 731.201(21), thereby prompting the court to dismiss his petition with prejudice. The 5th DCA reversed the trial court noting that although the "papers filed by [petitioner's counsel] were not models of clarity," a "fair reading of the papers [counsel] filed demonstrates that [he] was proceeding not for his own personal interest, but as a representative of Magnolia Manor."

Suing a Life Insurance Company? Death Certificates Wont Get You Very Far

Great Southern Life Ins. Co. v. Porcaro, 869 So.2d 585 (Fla. 4th DCA Feb. 25, 2004) (TRIAL COURT REVERSED)

Palm Beach County Circuit Court Judge Thomas M. Lynch, IV granted summary judgement against a life insurance company in favor of a woman whose husband had "mysteriously disappeared" more than two years prior to when she first filed a petition in probate court to have him declared dead. The 4th DCA reversed on the grounds that a death certificate obtained through probate proceedings pursuant to Section 731.103 "no longer has evidentiary value outside the context of probate proceedings." As such, it was reversible error for the trial court judge to shift the burden of proving the decedent's death away from the widow and onto the insurance company based on the evidentiary value of the death certificate.

When in Doubt, Err on the Side of Noticing All Interested Parties

Velde v. Velde, 867 So.2d 501 (Fla. 4th DCA February 25, 2004) (TRIAL COURT AFFIRMED)

At issue in this case was whether simply filing a petition for extension of time to make an elective share election was a "proceeding," and thus sufficient under old Section 732.212 to toll the then applicable four-month deadline date for making an election. Effective as of October 1, 2001, this statute was substantially revised and renumbered as Section 732.2135, which now explicitly states that a "petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election." However, because the decedent died on October 9, 2000, the court was required to apply old Section 732.212. Nonetheless, the 4th DCA noted that interpreting the tolling period under old Section 732.212 as only applying to litigation "would not give effect to the legislature's intent and would yield an absurd result." Consequently, the court held that the word "proceeding" should be "interpreted broadly enough" to encompass the extension petitions at issue in the case.

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