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Florida Probate Blog

Category: Estate Litigation

Virtual Adoption versus Will Contest

Written by on Sep 4, 2009| Posted in: Estate Litigation

The only situation that I believe would require the virtual adoption case to be determined before the will contest case would be in the context of a pretermitted child where a person omits to provide in his or her last will and testament for a child or adopted child because the child was born or adopted (which presumably would include virtual adoption) after making the last will and testament.

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Elder Abuse is a Family Issue

Written by on Aug 26, 2009| Posted in: Estate Litigation

In cases where there are allegations that a will signature was forged, it is helpful to engage the expertise of a forensic handwriting expert to examine the original document; however courts sometimes disregard dueling handwriting experts as hired guns who will testify predictably in favor of their client’s position.

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Death and Taxes

Written by on Aug 25, 2009| Posted in: Estate Litigation

It is important for probate practitioners to address foreseeable situations so as to avoid unnecessary litigation costs to the estate after administration commences and beneficiaries become disgruntled with the tax apportionment position taken by the estate fiduciary.

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Florida Wrongful Death Act

Written by on Aug 12, 2009| Posted in: Estate Litigation

once the expenses became a charge against the Estate pursuant to section 768.21(6)(b) of the Wrongful Death Act, the personal representative had the exclusive authority to resolve those claims in a reasonable and equitable manner and in accordance with section 733.707 of the probate code.”

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Rules of Affection

Written by on Aug 10, 2009| Posted in: Estate Litigation

Frequently, probate litigators are called upon by clients to ask a probate judge to interpret an ambiguous clause in a Will that invariably directly affects the substantive rights of the beneficiaries.

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Bad Faith and Attorney’s Fees

Written by on Aug 10, 2009| Posted in: Estate Litigation

I believe the reasons for both the milder renunciation rule and for the requirement of bad faith announced in Lane is to promote beneficiaries ability and willingness to come forward with their concerns of undue influence and incapacity to the court without fear of reprisal or punishment.

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Interference With an Expectancy in Federal Court?

Written by on Jul 29, 2009| Posted in: Estate Litigation

Marshall v. Marshall opens the doors to federal court for undue influence and probate claims For many years, many probate litigators, myself included, believed that the so-called probate exception to federal jurisdiction served to prevent federal courts from adjudicating any matters that were even slightly related to a probate estate.  This whole notion was turned on its head in 2006 when Justice Ginsberg wrote the majority opinion in Marshall v. Marshall, 547 U.S. 293 (2006).  With the second anniversary of the death of Anna Nicole Smith approaching this fall, I think it is a good time to review the holding of Marshall and also view how lower federal courts have interpreted its holding since 2006. Many people are familiar with the details of the case:  Vickie Lynn Marshall (Vickie), a.k.a. Anna Nicole Smith, was the surviving widow of J. Howard Marshall II (J. Howard), who died without providing for Vickie […]

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Standing in Probate

Written by on May 12, 2009| Posted in: Estate Litigation

Third District Applies General Agency Principals to Issue of Who is Real Party in Interest A quick glance at any court docket these days will reveal that many foreclosure actions are being prosecuted by someone other than the real party in interest. While it is generally acceptable for an authorized agent to bring a lawsuit on behalf of a principal in a civil action, how and to what extent is this rule recognized in the probate arena? Generally, in actions by or against a probate estate, the personal representative of the estate is a necessary and indispensable party. There is a lot of decisional case law in Florida holding that in cases involving claims made by or against an estate, the estate and its survivors are the real parties in interest, and the personal representative is merely a nominal party.

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Does a co-owner of jointly-held property get the mortgage paid if the Will requires payment of debts?

Written by on Apr 2, 2009| Posted in: Estate Litigation

Court rules that a Will’s direction for payment of “all just debts” did not require exoneration of jointly held property. Under the common law doctrine of exoneration, an heir or devisee is generally entitled to have encumbrances upon real estate paid by the estate unless the will directs otherwise. The Florida Probate Code abrogates this common law doctrine and directs that the specific devisee of any encumbered property is entitled to have the encumbrance paid at the expense of the residue of the estate only when the will shows that intent. Fla. Stat. §733.803.

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Redactions Upheld

Written by on Feb 20, 2009| Posted in: Estate Litigation

Fourth District Court of Appeals Issues Order Protecting Documents of Trustee’s Attorneys from Discovery. Generally speaking, when any person hires an attorney, including the trustee of a trust, the written and verbal communications are privileged and confidential. However, litigation frequently tests the limits to this rule of non-disclosure. One of the most formidable weapons used by litigators to crack the seal on the confidentiality is to request documents relating to the communications in the process of discovery. Often, a party will issue a limited waiver of the attorney-client privilege and this waiver is then used (or abused depending on your perspective) to wedge in between the privilege and the forced disclosure of protected documents.

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