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Florida Probate Blog

Author: Adrian P. Thomas

Power of Appointment

Written by on Jan 2, 2014| Posted in: Probate Litigation

A Cautionary Tale from the First District Court of Appeal:  exercise a power of appointment with great care to avoid harsh results. In general, Florida Circuit Courts sit in equity over trust and will disputes and are thus empowered to look to the intent of the settlor of a trust or testator of a will when deciding the rights of litigants.  However, Florida’s 1st District Court of Appeal recently authored an opinion which indicates that, in situations regarding powers of appointment, strict compliance with the written instrument is absolutely necessary, regardless of the apparent intent of the testator attempting to exercise the power through a provision in her will.  The case, Cessac v. Stevens, 2013 Fla. App. LEXIS 18525 (Fla. Dist. Ct. App. 1st Dist. Nov. 20, 2013), is one of only two Florida cases which speak directly to this issue. A power of appointment is, generally speaking, the authority […]

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WILL DISPUTES AND MEDIATED SETTLEMENT AGREEMENTS

Written by on Dec 19, 2013| Posted in: Estate Litigation

by Adrian Thomas When can a mediated settlement agreement be set aside? The First District Court of Appeal recently decided Pierce v. Pierce (In re Estate of Pierce), 2013 Fla. App. LEXIS 19597, 2013 WL 6438955 (Fla. Dist. Ct. App. 1st Dist. Dec. 10, 2013), which succinctly addressed the issue of when a mediated settlement agreement may be set aside or vacated. Pierce involved a will dispute between two sisters, Linda and Tamra Pierce.  After contentious litigation, the parties went to mediation.  The morning after mediation, Linda had second thoughts about the settlement agreement and sought to set it aside (vacate) it.  The lower court judge held that he could not find that Linda had “freely, knowingly and intelligently entered into the agreement.”  The First DCA reversed, not only because the lower court’s finding was unsupported by competent substantial evidence, but also because the lower court applied the wrong standard.  […]

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Disposition of Property by Handwritten Will

Written by on Oct 26, 2013| Posted in: General

SECOND DISTRICT COURT OF APPEALS CERTIFIES QUESTION OF GREAT PUBLIC IMPORTANCE TO THE FLORIDA SUPREME COURT REGARDING FUNDAMENTAL CONSTITUTIONAL RIGHT FOR A PERSON TO DISPOSE OF PROPERTY BY WILL              Florida will lawyers and trust lawyers frequently assert the rights of a deceased person to dispose of their property by a will.  The United States Constitution grants no right to dispose of property by a will; however, since 1968, Florida has recognized this fundamental constitutional right under the State Constitution.              Recently, the Second District Court of Appeals was confronted directly with how far the constitutional right applies in the context of legislation requiring certain technical formalities with regards to Wills.  In Lee v. Payne, 38 Fla.L.W. D1969, (Fla. 2nd DCA Sept. 18, 2013), the Decedent’s fiancé sought to admit to probate Mr. Payne’s Colorado holographic will.  A holographic will is a will in testament that has been entirely handwritten […]

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COMPARING FLORIDA AND OHIO WILL CONTESTS

Written by on Oct 25, 2013| Posted in: Probate Litigation

Ohio and Florida share many characteristics:  love of college football and family values, among others.  But when it comes to the procedures to evaluate the validity of testamentary instruments, Ohio and Florida part ways significantly.  The most glaring difference is the availability of pre-death will contests in Ohio, a statutory animal that does not exist in Florida, and is available in only four other states in the country. The Ohio Statute allows a testator or testatrix of a will executed in accordance with Ohio law, to file a lawsuit seeking the court to declare during their life that the will is valid.  The statute requires the testator or testatrix in Ohio to name as defendants all people who would be entitled to an inheritance under the laws of intestacy as well as all of the beneficiaries specifically named in the will.  The court then conducts a hearing and if the […]

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Do I have a will contest case?

Written by on Oct 18, 2013| Posted in: Uncategorized

Florida is an ideal location for retirement.  Retirees from all over the country migrate to Florida to enjoy the beaches, laid-back lifestyle, seemingly endless entertainment options, favorable tax laws, and most of all, the weather.  Unfortunately, a surplus of elderly residents means plenty of targets for predatory relatives, friends or caretakers seeking to take advantage of the elderly. When elderly Floridians are preyed upon and unduly influenced or coerced into changing their estate plans, the attorneys at Adrian Philip Thomas, P.A. are ready to step in and make sure that the rights of family members and the true beneficiaries are protected.  We receive inquiries every day from potential clients who want to know, “Do I have a case?” Before our office can make that determination, we have to examine the facts.  Some of the relevant material that should be gathered in order to diligently scrutinize the case includes: All testamentary […]

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Renunciation Rule

Written by on Sep 6, 2013| Posted in: Trust Litigation

What is the “renunciation rule?” Clients are often surprised to learn that if they want to challenge a trust document, they will – with limited exceptions – be required to return to the trust any distribution they have received under the challenged document while the litigation is pending.  This is called the “renunciation rule.”  The Second District Court of Appeals recently released an opinion that discussed at great length the origins and reasons for the renunciation rule.  See Fintak v. Fintak, 38 Fla.L.Weekly D1815 (August 30, 2013).  The renunciation rule originated in English ecclesiastical courts and originally provided that a beneficiary who received a bequest from a will must return the bequest before being permitted to contest the will.  Hamblett v. Hamblett, 6 N.H. 333 (1833).   The American courts interpreted that rule to mean that a beneficiary who receives and keeps a gift under a will or other instrument is estopped […]

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Standing in a Will Contest

Written by on Aug 30, 2013| Posted in: Uncategorized

Who can contest a will in Florida?   This is a common question among potential clients who believe that, due to fraud, duress, undue influence, or lack of capacity, a will being offered for probate is invalid.  In these situations, the reason for the will’s invalidity may be obvious; perhaps the decedent had Alzheimer’s Disease and couldn’t remember his own name on the date he executed and signed the will.  However, when the will document omits or significantly neglects children, spouses, or siblings of the decedent, does that mean those people can automatically file suit?  Who has standing to contest the validity of the will? The Fourth District Court of Appeals has recently filed an opinion which speaks to the issue of standing in will contests and highlights the importance of specifically articulating a petitioner’s right to sue in the initial complaint.  In Gordon v. Kleinman, 38 Fla. L. Weekly […]

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Freezing Assets: Putting a Stop to Ongoing Injury

Written by on Jul 29, 2013| Posted in: Estate Litigation

We speak with clients everyday who worry that estate trust assets are going to waste or being actively misappropriated.  Some cases involve breach of fiduciary duties, while others may involve fraud or undue influence in the inception.  Though the facts and circumstances vary, the concern is the same: irreparable harm is occurring and time is of the essence. In these situations, an injured party can appeal to the courts and invoke one of the most powerful tools available to the judicial system, the injunction.  An injunction is a court order that prohibits a party from doing some act which injures another party.  Injunctions are a function of the court sitting in equity, meaning they address a harm that cannot be adequately addressed by filing a lawsuit and receiving later damages from the offending party.  For example, if a trustee is actively melting down priceless family heirlooms to sell for scrap […]

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Florida Trust Lawyer

Written by on Jun 28, 2013| Posted in: Estate Litigation

The Florida Trust Code continues to grow and respond to the suggestions of the Florida Bar and Florida Trust Lawyers. A recent example is the recent enactment of Senate Bill 492 which made a number of changes which were recommended by Florida Trust Lawyers participating in the Florida Real Property, Probate, and Trust Law Section of the Florida Bar. One of the more significant changes of the Florida Trust Code used by Florida Trust Attorneys, which becomes effective October 1, 2013, is the expansion of the long arm jurisdiction of Florida Courts to adjudicate trust disputes. Many Florida Probate lawyers and Florida Trust attorneys remember the lesson from Pennoyer v. Neff, a SCOTUS opinion from 1878 which held that service over a person or property physically within a state confers jurisdiction to that person or property. But what happens when a beneficiary of a Florida trust has a dispute with […]

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What is a Spendthrift Trust?

Written by on Jun 18, 2013| Posted in: Estate Litigation

A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of he trust funds until they are dispersed to the beneficiary.

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