Taxation & Estate Planning

Interview with a Probate Lawyer: John G. Grimsley

By Juan C. Antúnez

John G. Grimsley of Grimsley Marker & Iseley, P.A., in Jacksonville, Florida, was on the winning side of Taylor v. Taylor, --- So.2d ----, 2009 WL 186155 (Fla. 1st DCA Jan 28, 2009), a case involving the enforceability of a premarital agreement waiving a widow's marital rights under F.S. § 732.702. I wrote about the Taylor case here. I first became aware of Mr. Grimsley through his work as co-author of Florida Law of Trusts, the definitive treatise on Florida trust law (his co-author is now slouch either, Prof. Powell was the scrivener for Florida's new Trust Code).

I invited Mr. Grimsley to share some of the lessons he drew from the Taylor case with the rest of us and he was kind enough to accept.

[Q] Looking back, what strategic decisions did you make in this case that were particularly outcome determinative at trial? On appeal?

[A] My strategy at trial was to have the two witnesses and notary testify to the circumstances surrounding the preparation and execution of the premarital agreement. Part of this strategy was to inquire into the decedent's intentions and statements leading up to and including the execution of the premarital agreement. Any hearsay objection was met with the state of mind exception to the hearsay rule allowing the Judge to overrule the objection.

On appeal the main strategy was to rely on the plain language of the premarital agreement and place the agreement in the context of waiving marital rights by using the Black's Law Dictionary definition of a premarital agreement. Also, we chose not to anticipate arguments from the wife (such as the absence of specific waivers of rights in the agreement), but rather to counter those arguments in our reply brief. Specifically, that unknown rights may be waived in the premarital agreement "Indeed, Florida Statute, section 732.702(2) negates the requirements of any disclosure of assets or values for an agreement entered into before marriage."

[Q] Looking back, would you have done anything differently in terms of framing your case for the trial-court judge?

[A] When doing the brief there were several areas of testimony that I wished I had included at trial, but it turned out that relying on the plain language of the premarital agreement and the plain language of the waiver statute was sufficient.

[Q] I wrote here in 2006 about an "ambiguous" premarital agreement that the 3d DCA held was a valid waiver of a widow's marital rights under F.S. § 732.702. After reading the 2d DCA's opinion in your case, I stated 'it's impossible to reconcile the different approaches taken first by the 3d DCA in 2006 and then by the 1st DCA above when applying F.S. § 732.702 to what all of us can agree are less than artfully drafted prenuptial agreements.' Would you agree? Disagree?

[A] Agree - testimony on intent of parties supports the terms of the premarital agreement.

[Q] From your perspective as probate litigator, do you think there's anything that could have been done in terms of estate planning to avoid this litigation or at least mitigate its financial impact on the family?

I believe this litigation could have been avoided by the decedent seeking the advice of an attorney in preparing a prenuptial agreement. The decedent made the same mistake in a holographic will that was notarized but had no witnesses. Even the invalid will had some probative value in showing the decedent's intent that his assets go to his son and not to his wife.

[Q] Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

[A] I learned from this case that the de novo construction of a contract on appeal applied to prenuptial agreements and allowed the appellate court to interpret the premarital agreement and apply it to the waiver statute.

Full post as published by Florida Probate Litigation Blog on May 29, 2009 (boomark / email).