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Taxation & Estate Planning

Florida Probate Litigation Blog

Posts probate-related appellate decisions in Florida and links to news stories and blog posts about probate law.
By Juan C. Antúnez

Post Frequency: 1.6/day

Last Entry: July 12, 2010 at 20:48:56

2d DCA: Trust-litigation venue statute won't get you to Canada

Posted on December 20, 2008
Hunt v. Hooper, --- So.2d ----, 2008 WL 5191505 (Fla. 2d DCA Dec 12, 2008) As I've written before, Florida is the largest recipient of state-to-state migration in the U.S. [click here]. This fact has all sorts of implications for trusts-and-estates matters...

3d DCA lectures probate litigator on ethics

Posted on December 17, 2008
pa href="http://www.flprobatelitigation.com/uploads/file/3D08-0005.pdf"Hernandez v. Gil/a, --- So.2d ----, 2008 WL 5156623 (Fla. 3d DCA Dec 10, 2008)/p pYou know you're having a bad day when the 3d DCA writes an opinion for no other reason than to lecture you on your ethical duties...

3d DCA lectures probate litigator on ethics

Posted on December 17, 2008
Hernandez v. Gil, --- So.2d ----, 2008 WL 5156623 (Fla. 3d DCA Dec 10, 2008) You know you're having a bad day when the 3d DCA writes an opinion for no other reason than to lecture you on your ethical duties. Although the arguments raised by the appellant below and here are meritless and would ordinarily prompt a per curiam affirmance, the role and actions of Hernandez's counsel warrant attention...

Princeton Agrees to $90 Million Settlement of Suit Alleging Misuse of Endowment

Posted on December 12, 2008
When I first wrote about this case in 2006 [click here], I saw it as a prime example of public relations as litigation tool. (Check out the litigants' dueling websites: here, here). Well, fast forward two years, the Princeton suit settled on the eve of trial...

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Jury rejects $17M legal estate-planning malpractice claim against Orrick

Posted on December 11, 2008
I previously wrote about this case from the perspective of how conflicts of interests can kill you as an estate planner if (a) you're not aware of the issues and (b) you fail to take appropriate precautions [click here]. As a follow up to that post, it seems that the estate planner at the center of this particular drama dodged the bullet (for now)...

4th DCA: So what's a specific bequest?

Posted on December 05, 2008
Babcock v. Estate of Babcock, --- So.2d ----, 2008 WL 4863088 (Fla. 4th DCA Nov 12, 2008) Any probate lawyer worth his or her salt will tell you that reading a person's will is often just the tip of the iceberg. You don't really know how to administer an estate unless you take the decedent's will and run it through Florida's probate code to see what comes out the other end...

4th DCA: Order denying motion to strike petition for administration for lack of standing is NOT an appealable probate order

Posted on November 29, 2008
Klingensmith v. Ferd and Gladys Alpert Jewish Family of Palm Beach County, Inc., --- So.2d ----, 2008 WL 4922917 (Fla. 4th DCA Nov 19, 2008) In probate proceedings your standing to participate in any aspect of the administration of the estate depends on whether or not you're an "interested person" of the estate, as that term is defined by F...

S.D.Fla. judge says "enough already!" to vexatious trusts-and-estates litigant

Posted on November 22, 2008
Barash v. Kates, --- F.Supp.2d ----, 2008 WL 4922787 (S.D.Fla. Jun 25, 2008) Serial litigation by vexatious litigants in trusts-and-estates proceedings and how courts go about dealing with them has been a frequent topic on this blog [click here, here, here]...

Probate and Trust Litigation Committee - Appellate Rule Project

Posted on November 21, 2008
Whether certain probate-related orders are or are not subject to appeal is a topic that comes up with some frequency on this blog [click here]. In an effort to add greater certainty to this area of the law, the Probate and Trust Litigation Committee has been working on an appellate rule project...

IRS private letter ruling documents creative lawyering by Florida probate litigators

Posted on November 20, 2008
Veteran Florida probate litigator Amy Beller was kind enough to direct me to Private Letter Ruling 200844010, in which the IRS ruled that if you split a single marital trust into five separate sub-trusts and then terminate just one of those sub-trusts, IRC § 2519 would be triggered only with respect to the terminated sub-trust...

4th DCA: Failure to plead claim for attorney's fees = waiver of claim

Posted on November 16, 2008
Wintter & Associates, P.A. v. Kanowsky, --- So.2d ----, 2008 WL 4643358 (Fla. 4th DCA Oct 22, 2008) If all you're asking a probate court to do is exercise its in rem jurisdiction over the assets of a trust by awarding you your attorney's fees from trust assets, then you don't have to plead this claim up front and can ask for these fees at any time by filing a motion under F...

3d DCA: Why knowing the difference between in rem and personal jurisdiction matters in probate proceedings

Posted on November 14, 2008
Brindle v. Brindle, --- So.2d ----, 2008 WL 4722746 (Fla. 3d DCA Oct 29, 2008) Sometimes it pays to step back and review the basics, like the difference between in rem jurisdiction and in personam jurisdiction in probate proceedings, or the finality of settlement agreements no matter what courtroom you happen to be in...

Trial begins in multimillion dollar estate-planning malpractice claim against Orrick, Herrington & Sutcliffe

Posted on November 10, 2008
As a matter of law, an ethics violation isn't the same as committing malpractice, but as a practical matter, the two are almost always interconnected. For me, the significance of this fact is that ethics rules can be your best friend. They help you identify future landmines before they blow up on you and take protective measures...

4th DCA: If you're the successor trustee of a revocable trust whose settlor is alive but mentally incapacitated, do you owe any duties to the remainder beneficiaries?

Posted on November 01, 2008
Brundage v. Bank of America, Trustee, --- So.2d ----, 2008 WL 4722970 (Fla. 4th DCA Oct 29, 2008) Incapacitated Settlor of Revocable Trust Florida's Trust Code is clear, while a trust is revocable, the duties of the trustee are owed exclusively to the settlor [F...

2d DCA: Does Civ Pro Rule 1.525 (Motions for Costs and Attorneys' Fees) apply to trust proceedings?

Posted on October 30, 2008
Donkersloot v. Donkersloot, --- So.2d ----, 2008 WL 4647415 (Fla. 2d DCA Oct 22, 2008) Civil Procedure Rule 1.525 governs the mechanics of attorney's fee motions in general commercial litigation. Here's what the rule says: Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal...

5th DCA: Why a de novo appellate standard of review can be your best friend in trust-construction litigation

Posted on October 25, 2008
Brown v. Miller, --- So.2d ----, 2008 WL 4600940 (Fla. 5th DCA Oct 17, 2008) In trust construction litigation the litigants are asking the judge to read the trust agreement and tell them what it means. In this type of litigation you often have the choice of allowing the court to rule on the trust agreement without taking any evidence or pressing for a trial on the merits...

4th DCA says NO to compulsory medical examination of 88-year old man caught up in someone else's litigation

Posted on October 19, 2008
Urbanek v. Hopkins, --- So.2d ----, 2008 WL 4489266 (Fla. 4th DCA Oct 08, 2008) What this case is really about is good lawyering. Miami probate litigator David H. Goldberg was hired to represent an 88-year old man suffering from Parkinson's disease who had the misfortune of getting sucked into trust litigation he didn't start and wasn't a party to...

4th DCA: What's it mean to have "rendered services to an estate" when seeking attorneys fees in probate litigation?

Posted on October 15, 2008
Duncombe v. Adderly, --- So.2d ----, 2008 WL 4489234 (Fla. 4th DCA Oct 08, 2008) If a beneficiary of an estate wants to get his attorney's fees paid with assets of the estate, the statute he'll have to hang his hat on is F.S. 733.106(3), which provides as follows: (3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate...

Can you compel a trust beneficiary to arbitrate a claim based on an arbitration agreement he never signed, but his trustee did?

Posted on October 13, 2008
Eichler v. Leshner, Slip Copy, 2008 WL 4459029 (M.D.Fla. Sep 29, 2008) In the linked-to case the beneficiary of a trust tried to sue the trust's investment manager for having "failed to properly invest trust assets." The defendant's filed a motion to compel arbitration based on an arbitration clause contained in the account agreement signed by the trustee...

4th DCA: "fabled twins of speculation and conjecture" aren't enough to validate a lost will

Posted on October 08, 2008
Balboni v. LaRocque, --- So.2d ----, 2008 WL 4414240 (Fla. 4th DCA Oct 01, 2008 The absence of supporting evidence is a recurring theme when it comes to appellate reversals in probate litigation [click here]. In this case the issue was whether the proponents of a lost will had overcome the presumption that the will was intentionally destroyed...

Another probate judge gets reversed for failing to appoint the testator's nominated PR

Posted on October 04, 2008
McCormick v. McCormick, --- So.2d ----, 2008 WL 4377136 (Fla. 1st DCA Sep 29, 2008) Florida probate judges are given a great deal of latitude when making calls on how an estate should be administered. But there's one estate-administration issue over which their authority is severely limited: whether or not to appoint the personal representative nominated in a decedent's will...

2d DCA: Arbitration agreement upheld based on broad grant of authority in decedent's power of attorney

Posted on September 30, 2008
Jaylene, Inc. v. Moots, --- So.2d ----, 2008 WL 4181140 (Fla. 2d DCA Sep 12, 2008) It's not uncommon for intermediate-level appellate courts to disagree with each each other, that's why we have supreme courts. But here's something you don't see every day: the 2d DCA disagreeing with itself by ruling two different ways on the same issue within a single 12-month period...

Wisconsin appeals court: Slayer Statute does not bar relatives who assist in father's suicide from inheriting his estate

Posted on September 26, 2008
Understanding how to conceptually "frame" a case, both factually and legally, is half the battle in litigation. So even if an appellate decision from another state isn't binding precedent in Florida, the way in which the case is framed by the appellate court can be instructive for Florida lawyers...

If your trust company goes bust, are your trust funds in danger?

Posted on September 24, 2008
According to a WSJ article entitled Trusts Require Attention During Market Turmoil, there's no need to worry if you open the paper one day and read your trust company's going down in a ball of flames. The good news is that trust assets managed by a corporate fiduciary such as Merrill Lynch & Co...

Palm Beach County, FL probate court and San Francisco, CA state court battle over control of $90 million art collection

Posted on September 20, 2008
Probate litigation has a way of spawning jurisdictional disputes that make your toughest law-school exam seem like a walk in the park. Click here, here and here for recent examples. These jurisdictional battles rarely become mano-a-mano contests between competing judges, but that's what seems to be happening in a case reported on in a San Francisco Chronicle article entitled Inheritance fight imperils de Young tribal art...

3d DCA reverses itself, homestead property may be sold to pay adminisration expenses

Posted on September 17, 2008
Cutler v. Cutler, --- So.2d ----, 2008 WL 4057751(Fla. 3d DCA Sep 03, 2008) When I first wrote about this case the 3d DCA upheld a probate court order refusing to apportion any probate expenses to a devise of freely-devisable homestead property under the “inuring clause” of Article X, section 4(b) of the Florida Constitution, effectively frustrating the testator's clearly expressed testamentary intent [click here]...

Estate Plans With Reins: Directed Trusts Allow Pinpoint Control of an Asset

Posted on September 17, 2008
Florida recently adopted it's own version of a "directed trusts" statute [click here]. And if you take a look at the agenda for the upcoming Florida Bar Trust Law Committee meeting [click here], you'll see we're not done tinkering with that statute just yet...

Trust Law Committee Meeting Reports/White Papers

Posted on September 16, 2008
Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Trust Law Committee at the Ritz-Carlton in Key Biscayne this coming Friday, September 19th, at 2 p.m. These materials are an excellent way to keep up on the latest developments involving Florida's Trust Code that could affect you, your firm or your clients...

Probate and Trust Litigation Committee Meeting Reports/White Papers

Posted on September 15, 2008
Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Probate & Trust Litigation Committee at the Ritz Carlton in Key Biscayne on Friday, September 19 from 10 a.m. to 12 noon. Any questions/comments regarding the meeting and the linked-to materials should be directed to the committee chair: William ("Bill") T...

Probate lawyers arrested for representing client disinherited by Georgia's Slayer Statute

Posted on September 07, 2008
If you practice in South Florida you've probably heard about the the indictment of Ben Kuehne, a former president of the Dade County Bar Association, former president of the Miami chapter of the Florida Association of Criminal Defense Lawyers and member of the Florida Bar Board of Governors...

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