'Vexatious' Attorney Conduct Results in Removal of Executor

The statute governing removal of personal representatives ("PR") in Florida is 733.504Acrimony - no matter how heated - is usually NOT sufficient to warrant removal of a PR [click here for recent example].  However, the outcome may be different if you can establish a detailed factual record proving that the acrimony is such that a significant portion of the estate will be eaten up in litigation expenses if the designated PR is not removed.  Note the shift in emphasis from "I don't like him" so please remove him as PR, to "the estate assets will be wasted" so please remove him as PR.

Mark Fass of the New York Law Journal recently published an article entitled 'Vexatious' Attorney Conduct Results in Removal of Executor.  In that NY case, the PR (referred to as "executor") was removed based upon a detailed factual record proving that a PR's representation by a particular law firm was so likely to result in litigation and waste of estate assets, that the PR should be removed.  The court agreed, and removed the PR.  Here's an excerpt from the linked-to article:

The "vexatious conduct" of the attorneys in the distribution of a woman's estate has led to the disqualification of their client as executrix of the estate.

The complex familial dispute began with the intestate death of 83-year-old Roseanna DeLaune, in 1997. Pursuant to statute, her sister, Paula M. Venezia, was appointed administrator; her heirs included her disabled nephew, William Pennington III.

Venezia hired her childhood friend from Manhattan's Little Italy, attorney Alfred Sica, to serve as counsel. He in turn hired the firm now known as Vaneria & Spanos.

In 2003, Venezia, 85, died, leaving the entirety of her own million-dollar estate to the same nephew, Pennington. She nominated her goddaughter, Joanne Zaccaria, to serve as executrix. Zaccaria, who had no role in the disbursement of the first estate, hired the same counsel -- Sica and Vaneria & Spanos.

Meanwhile, over the intervening six years, the administration of DeLaune's estate had devolved into what Sica later termed "combat" between himself and Pennington.

Loath to let history repeat itself, Pennington objected to Zaccaria's appointment, based in part on her selection of the attorneys he crossed swords with following the death of his first aunt.

Brooklyn Surrogate Margarita Lopez Torres has granted the petition, disqualifying Zaccaria from overseeing Venezia's estate. The surrogate cited the "vexatious conduct" of Zaccaria's chosen attorneys during the administration of the previous estate.

"To permit Zaccaria to serve as executor, along with her chosen counsel of Vaneria & Spanos and Alfred Sica, Esq., would be detrimental to this estate," Surrogate Lopez Torres held in Estate of Venezia, 2100/2003.

"Because of the excessively hostile and bitter relationship between the nominated fiduciary, her counsel and Pennington, the appointment of Zaccaria as fiduciary ... would have the practical effect of rendering the bequests of decedent to her nephew a nullity, as this estate would surely be taken down the inevitable road to further combative litigation," she said.

Lesson learned:

The concept of "issue framing" is nothing new in politics [click here].  Same idea applies in litigation. How an issue is "framed" in estate proceedings is everything.  If a litigant frames the issue in terms of his or her personal interests, a probate court is not likely to respond favorably.  By contrast, as the linked-to article shows, if the litigant frames the issue in terms of preserving estate assets - the likelihood of success goes way up.

Malpractice insurance carrier: wills and estates-related legal malpractice claims on the rise

I've received a number of inquiries regarding the $1 million estate-planning/probate malpractice verdict recently upheld on appeal, which I previously wrote about [click here].  I think many practitioners are trying to figure out what went wrong in that case and what they can do to avoid making the same mistakes.

Against this backdrop, a recently published article by LawPRO, a Canadian professional liability (malpractice) insurance provider, should be of interest.  Wills & estates law claims on the rise by Deborah Petch and Dan Pinnington provides claims statistics and risk management advice specifically focused on the probate/estate planning practice area.  Although written for a Canadian audience, the advice seems equally applicable in Florida.

I was especially interested to see that "lawyer/client communication failures" was far and away the single most common cause of malpractice claims.  This finding is in line with the med-mal statistics and "don't-be-a-jerk" risk management advice given to doctors I previously wrote about [click here].  Another way of stating the don't-be-a-jerk rule is: respectfully listen to and communicate with your clients.

Here are a few excerpts from the linked-to article:

In both count and cost, wills and estates-related legal malpractice claims have slowly increased over the last several years. By area of law, wills and estates is the fifth most common area of claims: Only litigation, real estate, corporate and family claims are higher. 

Over the last five years, wills and estates-related claims averaged 6.0 per cent of LAWPRO’s claims count (112 claims per year), and 5.4 per cent of our claims costs ($3.9 million per year). On average, resolving a wills and estates claim costs LAWPRO $34,404.

This article examines the reality behind the numbers: It highlights the most common errors, and the steps you can take to reduce the likelihood of a claim.

The most common errors

In the wills and estates area, the most common causes of claims
are the following:

  1. lawyer/client communication failures;
  2. inadequate discovery of facts or inadequate investigation;
  3. failure to know or properly apply the law;
  4. time and deadline-related errors;
  5. conflicts of interest; and
  6. clerical/delegation.
What is striking to most lawyers is that law-related errors rank third.  Lawyer/client communication-related errors are actually the most common, representing almost 40 percent of the errors in the wills and estates area.

*     *     *     *     *

Avoiding communications errors

When it comes to avoiding or reducing the likelihood of a communications-related claim, the importance of putting things in writing cannot be over-emphasized. While the failure to have written confirmation of instructions and advice is not negligence in and of itself, such written communication can be extremely helpful in defending you in the unhappy event that a claim is made against you. Why? Because more often than not, this type of claim involves the lawyer recalling that one thing was said or done, or not said or not done, and a disappointed beneficiary that alleges something different. This type of claim is very hard for LAWPRO to defend successfully. At the end of the day it essentially comes down to a question of credibility. Unfortunately, we frequently find inadequate documentation in the lawyer’s file to back up the lawyer’s version of what occurred. All too frequently, we see files with no correspondence or reporting letters whatsoever.

Fortunately this error is one of the easiest to prevent. You can significantly reduce your claims exposure by documenting your work. Confirm the information that your client provided to you, your advice to the client, the client’s instructions to you, and what steps were taken on those instructions. Document the time spent reviewing the provisions of the will, including what issues were discussed. This can be done in your notes, and in interim or final reporting letters, or even in an e-mail message.

Even taking a few seconds to make more detailed dockets can be a lifesaver. "Conference with client re review of draft will, including provisions re cottage” is much better than just "Conference with client re draft will."

A special caution is warranted for matters involving family members and close friends: We do see claims on these matters, and quite often find almost no documentation in the file. This probably happens because the lawyer is familiar with the personal circumstances of the client, and fails to make and document all appropriate inquiries. It would be best not to act for them; but, if you feel that you must, treat them as though you had never met them before. Remember, often it is not your client who is the potential claimant, rather it is a beneficiary or disappointed beneficiary, with whom you have no personal relationship.

"Thin-slicing" trusts and estates malpractice claims

I previously wrote here about a $71 million jury verdict entered against a large Texas firm for estate planning malpractice even though this same jury found that the client had suffered zero economic damages; and here about a $1.2 million jury verdict against a large Florida firm for estate planning malpractice even though the plaintiff in that case alleged only $1 million in damages.

In both of these cases it appeared to me that the attorneys were first sued then fared very poorly at trial not because of the economic harm caused, but rather because the plaintiffs felt that the trust they had placed in their attorneys' good faith had been betrayed.  In other words, non-economic factors were far more important than economic factors in determining the outcome of these cases.  A study of medical malpractice claims discussed in Malcolm Gladwell's 2005 book, Blink: The Power of Thinking Without Thinking, supports my theory.

In Blink Gladwell explores the power of the trained mind to make split second decisions, the ability to think without thinking, or in other words using instinct.  The author describes this phenomenon as "thin slicing": our ability to gauge what is really important from a very narrow period of experience. In other words, spontaneous decisions are often as good as—or even better than—carefully planned and considered ones.  When it comes to client interactions with professionals, be it lawyers or doctors, if the client's initial impression, hunch or instinct is that he or she isn't being seriously listened to, or that he or she is being talked down to or isn't being treated with respect, then the likelihood of a malpractice claim materializing somewhere down the line skyrockets.  Here's an excerpt from Blink discussing this phenomenon in the context of medical malpractice claims:

Believe it or not, the risk of being sued for malpractice has very little to do with how many mistakes a doctor makes. Analyses of malpractice lawsuits show that there are highly skilled doctors who get sued a lot and doctors who make lots of mistakes and never get sued. At the same time, the overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all. In other words, patients don’t file lawsuits because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care and something else happens to them.

What is that something else? It’s how they were treated, on a personal level, by their doctor. What comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly. “People just don’t sue doctors they like,” is how Alice Burkin, a leading medical malpractice lawyer, puts it. “In all the years I’ve been in this business, I’ve never had a potential client walk in and say, ‘I really like this doctor, and I feel terrible about doing it, but I want to sue him.’ We’ve had people come in saying they want to sue some specialist, and we’ll say, ‘We don’t think that doctor was negligent. We think it’s your primary care doctor who was at fault.’ And the client will say, ‘I don’t care what she did. I love her, and I’m not suing her.’”

*     *     *     *     *

Malpractice sounds like one of those infinitely complicated and multidimensional problems. But in the end it comes down to a matter of respect, and the simplest way that respect is communicated is through tone of voice, and the most corrosive tone of voice that a doctor can assume is a dominant tone.

*     *     *     *     *

Next time you meet a doctor, and you sit down in his office and he starts to talk, if you have the sense that he isn’t listening to you, that he’s talking down to you, and that he isn’t treating you with respect, listen to that feeling. You have thin-sliced him and found him wanting.

Lesson learned: don't be a jerk

My experience has been that personal representatives or trustees or attorneys who treat estate beneficiaries dismissively or discourteously are exponentially more likely to have their fees challenged, accountings challenged, investment decisions challenged, distribution decisions challenged and generally end up in court over and over again until the beneficiaries resign themselves to the mistreatment or the professional resigns.  In other words, the best way to avoid getting sued if you are a personal representative or trustee or attorney is to be nice.  Nice trumps negligence any day of the week.  And just as importantly, being a jerk can get you sued, no matter how good you are at your job.

Can you sue a personal representative 41 years after he was appointed?

Kravitz v. Levy, --- So.2d ----, 2007 WL 2480538 (Fla. 4th DCA Sep 05, 2007)

Probate is often criticized as being too expensive and slow moving. Why the costs and delay? In large part because the probate code is full of protections against various forms of foul play, including fraud by the person who is primarily responsible for protecting the estate: the personal representative.  But these safeguards are limited, and sometimes it can be years - maybe decades - before foul play involving an estate comes to light.  Can the family do anything after all this time?

Continuing torts doctrine saves the day.

The linked-to case involves probate proceedings for Max Kravitz, a resident of Pennsylvania, who died in July 1958. Kravitz's will was admitted to probate in Pennsylvania in 1959, and Morris Passon, Max's brother-in-law and the family lawyer, was appointed executor of Kravitz's estate.  In 2000 - 41 years later! - Passon died in Florida.  In the course of administering Passon's estate it became clear he had improperly kept assets of Kravitz's estate for himself.  So 41 years after Passon was appointed executor, the heirs of Kravitz's estate sued Passon's estate in Florida for negligence, conversion, tortious interference with an inheritance, and breach of fiduciary duty.  The trial court dismissed all claims, finding that they were time barred under F.S. 95.031(2)(a)

In the linked-to case the 4th DCA reversed the trial court's dismissal of the breach of fiduciary duty claims based on the "continuing torts doctrine."  The 4th DCA's opinion is extremely useful because it provides a possible road map for attorneys/families pursuing claims that could be decades in the making, which is not unheard of in contested probate proceedings.  Here's how the 4th DCA applied the continuing tort doctrine to the breach of fiduciary duty claims in this case:

This case is most like Halkey-Roberts Corp. v. Mackal, 641 So.2d 445 (Fla. 2d DCA 1994). There, a corporation brought an action against its former president claiming that he had repeatedly used corporate funds for his own personal interests. The trial court granted summary judgment on the president's statute of limitations defense, but the appellate court reversed on the claims of breach of fiduciary duty. It explained that the complaint alleged what constituted a continuing tort:

In regard to counts I and II, HRC contends that Mackal's [the former corporate president] behavior constituted continuing torts, for which the limitations period runs from the date the tortious conduct ceases. The continuing torts doctrine is recognized under our state law. See Seaboard Air Line R.R. v. Holt, 92 So.2d 169 (Fla.1956). The question of whether Mackal's actions constituted continuing torts precludes the granting of summary judgment as to counts I and II. To what extent, if any, the concept applies to this case is an issue for the trier of fact to decide.

Id. at 447. See also Carlton v. Germany Hammock Groves, 803 So.2d 852 (Fla. 4th DCA 2002) (whether continuing torts doctrine applies to facts of case is for trier of fact).  .  .  .  We conclude that material issues of fact remain as to whether Passon engaged in a continuing tort of breach of fiduciary duty until the date of his death. If so, the statute of limitations would not have begun to run until Passon's death. These issues are for a jury to resolve.

Probate court gets reversed for failing to appoint the statutorily preferred personal representative

Garcia v. Morrow, --- So.2d ----, 2007 WL 983053 (Fla. 3d DCA Apr 04, 2007)

I've written recently about probate courts being reversed for failing to appoint the personal representative named in a decedent's will (see here and here).  This opinion picks up on the themes outlined in those cases . . . but in the intestate context.

In this case Judge Maria Korvick was reversed for refusing to appoint the statutorily preferred person as personal representative in the absence of evidence that he lacked "the necessary qualities and characteristics” to assume the position as personal representative.

Lesson learned:

The key word here is "evidence."  In other words, it is reversible error for a trial court to refuse to appoint as personal representative the person with preference under F.S. 733.301 in the absence of specific findings of fact - developed in the context of a formal evidentiary hearing - that the statutorily preferred person lacks the necessary qualities and characteristics to assume the position as personal representative.  Quoting the 5th DCA in DeVaughn v. DeVaughn, 840 So.2d 1128, 1132 (Fla. 5th DCA 2003), here's how the 3d DCA articulated the rule:

[W]e know that the probate court has the inherent authority to consider a person's character, ability, and experience to serve as personal representative. See Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996). However, if the statutorily preferred person is not appointed, the record must show that the person is not fit to be appointed. If the record supports the conclusion that the statutorily preferred person “lacks the necessary qualities and characteristics,” the court has discretion to refuse to make the appointment. Id.

Another probate court gets reversed for failing to appoint the testator's designated personal representative

Hernandez v. Hernandez, 2007 WL 120051 (Fla. 5th DCA Jan 19, 2007)

It was only about a month ago that I wrote here about the reversal of a probate court's refusal to appoint the person designated in a will to serve as personal representative.  In the linked-to case we again have a probate court being reversed for failing to appoint the personal representative named by the testator in his will.  Why probate courts feel they have the discretion to brush aside perhaps one of the most important aspects of any person's will -- designating your PR -- is a mystery to me.  The following excerpt from Wikipedia's definition of executor gives a good sense of how big a job being PR can be, and thus how important this choice is:

Typically the executor is the person responsible for offering the will for probate, although it is not absolutely required that he or she do so. The executor's duties also include the disbursement of property to the beneficiaries as designated in the will, obtaining information about any other potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditor's claims. An executor also makes sure estate taxes are calculated, necessary forms are filed and tax payments made, and in all ways assists the attorney for the estate. Also the executor makes all donations as left in bequests to charitable and other organizations as directed in the will. In most circumstances the executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate. The executor also holds legal title to the estate property, but may not use that property for the executor's own benefit unless expressly permitted by the terms of the will.

Given that the selection of a PR is so important, it's little wonder that Florida law provides such deference to the choice expressed in a person's will.  Here's how the linked-to opinion articulated Florida law on this point:

In Schleider, the Fourth District wrote:

The general rule of law is that trial courts do not have discretion to refuse to appoint the personal representative named by the testator in the will unless that person is disqualified by law. Clearly, the testator's selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent's will.

Schleider, 770 So.2d at 1253 (citations omitted); see also § 733.301(1)(a) 1., Fla. Stat. (2005).

In the linked-to case the probate court refused to appoint the designated PR because of animosity between the designated PR and his brother.  The 5th DCA explained as follows why family-acrimony alone isn't reason enough to ignore a person's will:

[T]he trial court did not detail the facts that would support the denial of Ruben's petition for administration, but referred only to the brothers' conflict as its basis for declining to appoint either as personal representative. This was insufficient because a dispute between the estate's beneficiaries, without more, does not constitute sufficient grounds to refuse to appoint an otherwise qualified person named as personal representative in the decedent's will. See Schleider, 770 So.2d at 1254. Where a dispute will cause unnecessary litigation and impede the estate's administration, and either the person lacks the character, ability, and experience to serve or exceptional circumstances exist, the totality of circumstances may permit the court to refuse to appoint the personal representative named in the will. Id. Here, the record does not support such a conclusion.

Personal representative to lawyer: So what can possibly go wrong after you've settled the case?

Johnson v. Clark, 2006 WL 3780511 (M.D.Fla. Dec 20, 2006)

No surprises.  That, in a nutshell, is probably the single most important ingredient in any successful attorney-client relationship . . . especially so in the litigation context.  Which is why this case is an excellent resource for Florida probate counsel.

Hammering out a settlement agreement is usually considered probate-litigation Nirvana.  But just because the trustee or personal representative signs off on the deal doesn't mean you're home free.  If one of the beneficiaries is determined to undermine the deal then all the "what ifs" need to be anticipated and factored into the deal (remember - no surprises!). 

So what can you do to ensure the deal sticks?  First of all, you'll want to get  a court order approving the deal after a hearing where all beneficiaries were given an opportunity to object.  Counsel in this case did this.  So far so good.  But what can you do if a beneficiary starts up a whole new piece of litigation covering the same ground covered by the settlement agreement?  As we all know, you can't stop someone from suing you, all you can do is mitigate the risk and cost of such actions.

Virtual Representation

Although the virtual-representation concept summarized below provides an effective tool for disposing of litigation by disgruntled beneficiaries in the settlement-agreement context, the cost of having to litigate this issue should have been anticipated as part of  the settlement deal and shifted over to the estate in the form of an indemnification clause (remember - no surprises!).

The doctrine of virtual representation provides that “[a] person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party.” Restatement (Second) of Judgments § 41(1). Further, it is well-settled that in cases involving claims by a trustee and individual beneficiaries, a trustee, in his representative capacity, acts on behalf of the trust representing the interests of the trust and its beneficiaries; a beneficiary is therefore bound by a judgment properly obtained by a trustee acting in his representative capacity. See § 737.402(t), Florida Statutes (2006); Restatement (Second) of Judgments § 41(1)(a) (“A person is represented by a party who is the trustee of an estate or interest of which the person is a beneficiary····”). In Florida, the doctrine of virtual representation has been codified [in F.S. 731.303].

Intervenor Status

But what if you happen to be the attorney representing the disgruntled beneficiary?  What kind of options can you open up for this client?  The virtual-representation concept bars your client from undoing a settlement deal entered into by his or her trustee, but what if your client had independent standing in the case?  Well, then it's a whole new ballgame.  As discussed in the following excerpts from the linked-to opinion, if your client is granted "intervenor status" in the case, presto: independent standing!

Although [Weiss v. Courshon, 618 So.2d 255 (Fla. 3d DCA 1993)] has a similar fact pattern to that presented here, the one glaring and significant difference between the beneficiaries in Weiss and Clark in the present case-the fact that Clark never formally became an intervenor in the probate proceedings-dictates the different result here. While it is true that Clark objected to the Mediation Agreement and even appealed the court's order approving the settlement, Clark was not an intervenor to the trustee's claims and neither the Mediation Agreement nor the Order approving it expressly reserved his individual claims. . . . . .

FN6. Although the [Weiss v. Courshon, 618 So.2d 255 (Fla. 3d DCA 1993)] court did not specifically cite to it, Florida law provides that “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention.” Fla. R.Civ.P.1.230. “[T]he general rule [is] that it is too late to apply for intervention after final decree has been entered, though there are cases where in the interest of justice leave to intervene has been granted after final decree.” Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So.2d 751, 752 (Fla.1956) (internal citations omitted) (holding that potential loss of intervenors' homes satisfied the interest of justice exception). Further, the Virtual Representation Statute represents a policy decision by the Florida legislature, which weighs heavily against the possibility that facts of this case would warrant a late grant of intervenor status, even if Clark had actually requested such status. See id.

The "Standard" General Release

Say it's 11 PM on a Friday night and you've been negotiating a settlement deal for the last 18 hours, you've worked through the all the economics of the deal and someone says "how about we just agree to the 'standard' general release?"  Freeze, because that last statement is nonsense.  Do yourself and everyone else involved a favor and insist on the parties agreeing to the explicit text of the release.  If anyone blows a gasket at this latest middle-of-the-night example of your intransigence, you may want to share this last bit of guidance from the linked-to opinion:

The Florida Supreme Court has recognized that “there are no ‘standard’ general releases; all are unique. The fact that a proposed release is described as being ‘general’ is virtually meaningless. [I]t would be essential to know what is being released, who is being released, and any conditions or terms of the release.” Swartzel v. Publix Super Markets, Inc., 882 So.2d 449, 453 (Fla. 4th DCA 2004). In other words, the covenant to execute “mutual general releases” as set forth in the Mediation Agreement essentially had no meaning until the actual general releases were executed . . .

Does a conflict of interest disqualify a personal representative from being appointed in the first place?

Werner v. Estate of McCloskey, 2006 WL 3613178 (Fla. 1st DCA Dec 13, 2006)

This case underscores the importance Florida law gives to a person's choice of personal representative in his or her will.  It also proves that just because you may think there are grounds to remove a serving personal representative, it doesn't mean you have grounds for blocking the initial appointment.  Why does this matter?  Because who gets appointed personal representative ("PR") of an estate has huge implications in the litigation context.  The named PR can pay his legal fees with probate assets, while the person challenging the PR has to pay his own way.  In the real world, this fact alone can determine the outcome of a contested proceeding, regardless of the underlying legal positions of the parties.

The following excerpt from the linked-to opinion speaks to the strength of the legal presumption in favor of the named personal representative:

Section 733.301(1)(a), Florida Statutes (2005), provides that, in testate estates, preference in granting letters of administration must be accorded to “[t]he personal representative ··· nominated by the will····” Moreover, “[i]t is a well recognized principle of law that a testator has the right to name the person who shall administer his estate provided such person is not disqualified by law.” Pontrello v. Estate of Kepler, 528 So.2d 441, 442 (Fla. 2d DCA 1988) (citations omitted). “The general rule is that trial courts are without discretion to refuse to appoint the personal representative specified by the testator in the will unless the person is expressly disqualified under the statute or discretion is granted within the statute.” In re Estate of Miller, 568 So.2d 487, 489 (Fla. 1st DCA 1990) (citations omitted).

Here, the trial court appointed Ms. Niznik rather than appellant because it concluded that appellant “ha[d] a conflict of interest with the estate” (the precise nature of which was not identified). Nothing in section 733.301(1)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve. Sections 733.302 and 733.303(1), together, set out the qualifications required of one who wishes to serve as a personal representative. Section 733.302 requires that the person be “sui juris” and “a resident of Florida at the time of the death of the person whose estate is to be administered.”

The following excerpt reminds the parties of the fact that just because a conflict of interest may not disqualify a named PR, it's certainly a good reason to get rid of him or her once appointed:

We note that, to the extent that, on remand, there exists a legitimate concern about whether appellant has a conflict of interest, section 733.504(9), which lists causes for removal of a personal representative once appointed, includes as a ground “[h]olding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole.”

Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?

The March 2005 edition of the Yale Law Journal contains this interesting (perhaps even provocative) article by the noted Yale Law School Professor John H. Langbien. The logic underlying his thesis is somewhat circular in nature, although it is sure to warm the hearts of corporate fiduciaries (or more specifically, the "business development" folks at large banks). In a world dominated by an ever smaller group of financial-services conglomerates that maximize shareholder returns by cross selling an ever growing array of financial products and services to a single set of clients (the fancy word for this is "synergy"), it is no surprise that corporate fiduciaries seek to cross sell to their trust clients as well. The only problem is that they are hampered by these old fuddy duddy fiduciary self-dealing prohibitions that were developed within the context of a supposedly more genteel 18th century English business culture. The gist of Prof. Langbien's article is that if today's corporate environment conflicts with two-century's worth of Anglo-American fiduciary common law, then there must be something wrong with the law (see what I mean by the circular nature of this argument). Prof. Langbien proposes a technical fix that could be easily incorporated into state statutory regimes governing trustees and other fiduciaries (e.g., personal representatives of estates).

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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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Petitions to Remove a Personal Representative Are Not Subject to the Three-months Statute of Limitations Period Found in F.S. Section 733.212

Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA Feb. 11, 2004) (TRIAL COURT REVERSED)

Fifteen months after the court signed letters of administration appointing Henry Pass, a non-resident attorney, as co-personal representative of the decedent's estate, the decedent's daughter, Adriaan Angelus, filed a petition seeking to remove him as personal representative. Pass had initially filed a petition for administration that admitted he was a non-resident of Florida, but also claimed that he was the decedent's nephew. At the hearing on the petition to remove him, Pass admitted that he was the blood nephew of the decedent's former husband, not of the decedent. Consequently, Pass did not fall within the exception for blood relatives carved out in Section 733.304 to the general residency requirement imposed on Florida personal representatives. Notwithstanding this admission, Miami-Dade County Circuit Court Judge Arthur L. Rothenberg dismissed the removal petition ruling that it was time barred by the three-month statute of limitations period established by Section 733.212.

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