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Florida Probate Blog

Author: Adrian P. Thomas

Pretermitted Child: Paternity vs. Adoption

Written by on Apr 23, 2014| Posted in: Probate Litigation

The Florida legislature enacted a statute to protect the inheritance rights of children born after a decedent executed his or her Last Will & Testament.  The statute, known as a “Pretermitted Children” and found at Fla. Stat. §732.302, provides that “when a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received it the testator had died intestate.”  The statute is predicated on the notion that parents intend for their children to inherit from them and that if a child was born after a parent executes a Will that it was probably an oversight not to execute a new […]

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Probate and Prenuptial Agreements

Written by on Mar 11, 2014| Posted in: Probate Litigation

What impact does a prenuptial agreement have upon title to the assets of a trust and the rights of trust beneficiaries? The importance of that question was highlighted by a recent Second District Court of Appeals case, Shakespeare v. Prince, 129 So.3d 412 (Fla. 2d DCA 2013). In Shakespeare, Mr. and Mrs. Shakespeare entered into a prenuptial agreement to maintain their assets separately. Mrs. Shakespeare, who had inherited a substantial fortune from her prior marriage, bought a home for the couple in Collier County. She subsequently created a trust and, waiving her homestead rights, transferred title of the home to the trust, making the home a trust asset. Mrs. Shakespeare’s trust provided that, upon her death, Mr. Shakespeare would receive only a life estate in the home; upon Mr. Shakespeare’s death, title to the home would pass to Mrs. Shakespeare’s son from her first marriage. This relatively straight-forward estate plan […]

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How Long Does a Beneficiary Have to Challenge the Actions (or Inaction) of a Trustee?

Written by on Feb 10, 2014| Posted in: Trust Litigation

Typically, a trustee serves its accounting on beneficiaries which discloses all matters involving the trusts.  Under normal circumstances, a beneficiary then has four years from receipt of the accounting to bring an action for breach of fiduciary duty.  If an accounting is not provided to the beneficiaries, or when the accounting falls short of properly informing a beneficiary of what is happening with the trust assets, then the Statute of Limitations never begins to run.  If a beneficiary has actual knowledge of the matter not adequately disclosed in the accounting, and it can be proven by clear and convincing evidence that the beneficiary had actual knowledge, or if there has been a repudiation of the Trust by the Trustee and the beneficiary has actual or constructive knowledge of the repudiation, then the four-year statute of limitations will bar that claim, Fla. Stat. §736.1008(3)(a).  The fact that a Trustee has not […]

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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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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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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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