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Florida Probate Blog

Yearly Archives: 2008

Parents Inheriting from Children in Intestate Probate Estate

Written by on Sep 17, 2008| Posted in: General

Can a Parent Inherit from a Child Whom the Parent Did Not Support? An infant was born severely handicapped as a result of medical malpractice by doctors at birth. The doctors were sued and a judgment was entered against them for almost three million dollars, the bulk of which was placed in a trust for the child’s benefit. The child died on September 2, 2005. The child’s mother took care of her throughout her life and received funds from the trust to attend to the child’s needs. After the child’s death, her biological father sought half of the balance remaining in the trust under their state’s intestacy laws. The child’s mother argued that the father didn’t contribute to the child’s support during her life, and owed unpaid child support, and therefore shouldn’t be entitled to half of the remaining funds in the trust. Further, the child’s mother claimed that even […]

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Trustee’s Duties

Written by on Sep 16, 2008| Posted in: Estate Litigation

TRUSTEE’S DUTIES What is the legal duty of a fiduciary? The answer from Justice Cardozo is still quoted today:  “A trustee is held to something stricter than the morals of the market place.  Not honesty alone, but the punctillo of an honor most sensitive, is then the standard of behavior.” Meinhardt v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928).

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Undue Influence: Summary Judgments Are Rare in Cases of Undue Influence

Written by on Sep 16, 2008| Posted in: Estate Litigation

Undue Influence Florida When can you get a summary judgment in Florida when there’s been undue influence? Not often. RBC Ministeries filed a lawsuit to revoke probation of the will of Lewis Simoneau, and Barbara Topkins filed for summary judgment to allow the will to go forward, and won.  RBC Ministeries appealed, arguing that there was undisputed evidence establishing a legal presumption that Barbara Topkins exerted undue influence over Lewis Simoneau, who lacked testamentary capacity.  It was urged that the will was void, and a prior 1977 Will was legal (which named RBC Ministeries, not Barbara Topkins, as its residual beneficiary). Undue influence is the overpersuasion, coercion or force that destroys or hampers the free agency and willpower of the testator.  If a main beneficiary has a confidential relationship with the person who signs the will, and is actively involved in that person finalizing that will, then the law will […]

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Florida Guardianship Litigation: Statute of Limitations Medical Malpractice Case

Written by on Sep 16, 2008| Posted in: Guardianship Litigation

When is a Guardian barred from suing the doctors that allegedly caused her daughter’s brain damage? Mrs. Thomas was named as plenary guardian for her daughter, Tammy, after Tammy suffered a heart attack and brain damage while giving birth to her baby.  Mrs. Thomas claims that Tammy wouldn’t have been hurt, except for the doctor taking too long to deal with Tammy’s high blood pressure.  On Tammy’s behalf, and she sued the doctor, the hospital, and others. The trial court ruled that Mrs. Thomas took too long to bring the lawsuit, and it was barred as a matter of law by the Florida Medical Malpractice Statute of Limitations.  Under that Florida law, Mrs. Thomas has two (2) years to file suit.  Calculating  that deadline is key: on what date does time begin to run for the plenary guardian? The appellate court answered that question by sending the case back to […]

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Florida Trust Modification: Trustee Has Standing to Reform and Modify Trust Language

Written by on Sep 16, 2008| Posted in: Trust Litigation

Trust Language Isn’t Set in Stone — Should the Nurse Get the Apartment? Maybe. The Trustee Has Standing to Argue She Should Via Reforming the Language of the Trust. Cecilia Reid was Edgar Sonder’s nurse for several years.  Being a responsible man, Edgar Sonder created a “pour over” trust in May 2000, naming himself as trustee.  (A “pour over” trust is a trust that is funded by assets “pouring over” from an estate, and is a common vehicle used in estate planning.) Later, Mr. Sonder amended the trust, naming Nurse Reid as its sole successor trustee.  The trust in its final version (Edgar Sonder amended the document twice before he died) included instructions on how his assets were to be distributed; several gifts were itemized. First, $31,000 was to be distributed among ten different charities (Art. II, section 1); second, and importantly, after the first gifts were completed, $125,000 was […]

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Florida Joint Tenancy with Right of Survivorship (JTWROS) Bank Account

Written by on Sep 16, 2008| Posted in: Estate Litigation

A Lesson in the Power of a Florida Joint Tenancy with Right of Survivorship (JTWROS) Bank Account Boy meets Girl; Boy puts Girl’s name on his bank accounts; Girl kills Boy: can Girl get the cash? Broward County Circuit Court tells Girl no, Fourth District Court of Appeals reverses, says answer is yes. John Russo and Michelle Julia never married, but their romantic relationship lasted several years.  In June 2005, John opened an account at Bank of America in his own name and less than two weeks later, he added Michelle’s name to that account.  In March 2006, John opened an investment account as well as a bank account with Charles Schwab; six weeks later, John added Michelle to those two accounts, too. On May 19, 2006, Michelle Julia shot and killed John Russo.  Less than one month had passed since her name had been added to the Schwab accounts.

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Florida Probate and Child Support: Will Change to Avoid Child Support Obligations of Beneficiary

Written by on Sep 10, 2008| Posted in: Estate Litigation

Deadbeat Dad Can’t Use Last Mom’s Last Minute Will Change to Escape Payment to Ex-Wife: CALIFORNIA COURT USES CONSTRUCTIVE TRUST THEORY TO DEFEAT LAST MINUTE WILL CHANGE BY MOTHER INTENDED TO HELP SON AVOID CHILD SUPPORT LIEN ON HIS INHERITANCE. In an interesting opinion that could have implications in Florida, a California Appellate Court recently used the legal remedy of a constructive trust to allow a testator’s ex-wife to sue her ex-husband and his sister after they allegedly coerced their mother into changing her will just prior to her death, to give to her daughter the share of the estate given to her son in a prior will so that he could avoid child support obligations. In Cabral v. Soares, 69 Cal.Rptr.3d 242 (Ct.App.2007) Tammy Cabral, the Plaintiff, filed a Complaint alleging that as of November 2005 her ex husband James was delinquent in paying court-ordered spousal and child support […]

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Florida Homestead Law and Creditor Claims

Written by on Sep 4, 2008| Posted in: Probate Litigation

Florida Homestead Law About Face by Third District Court of Appeals Advances Creditors Claims to Constitutionally-Protected Homestead Property:  General Direction to Pay Estate Taxes Trumps Constitutional Homestead Protections. In a surprising reversal, the Third District Court of Appeals on Tuesday, September 3, 2008, reheard and reversed its own opinion issued almost 19 months ago in Cutler v. Cutler, In Re:  The Estate of Edith Alice Cutler, 2008 WL 4057751, 33 Fla.L.Weekly D2103a (3rd DCA, No. 3D07-3070, Sept. 3, 2008). The opinion is significant for probate administration and litigation attorneys, and estate planning professionals for at least two reasons: (1) The Third District Court of Appeals joins the Fifth District in expanding the types of interest in land that may qualify for homestead protection; (2) a general direction in the administrative language at the end of a Will may now trump constitutional homestead protections. Cutler involved a Decedent, Edith Cutler, who […]

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