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Florida Probate Blog

Category: Probate Litigation

Will Substitutes in Florida

Written by on Jan 5, 2016| Posted in: Probate Litigation

THE CONFUSING LAW OF WILL SUBSTITUTES “Many legal doctrines today appear jarringly, carelessly, almost randomly out of harmony with one another.  The chaos has gone largely undetected and hence, has continued to swirl unimpeded.  But it is there to be seen, if we only care to look.  To observe the chaos, one has simply to forsake all instruments of magnification and scan the skies with the naked eye.”             -Adam Hirsch, Professor of Law, Florida State University. Professor Hirsch’s enlightened and succinct summary of the inconsistencies in the law of inheritance is most apparent when viewing the body of law surrounding the issue of Will Substitutes.  The increasing use of Will Substitutes to dispose of property upon death has caused great confusion among both practitioners and lay persons in the State of Florida.  Compounding the confusion problem is the fact that our probate law practice is […]

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Who has standing to assert claim for tortious interference with an expectancy?

Written by on Oct 21, 2015| Posted in: Estate Litigation

TORTIOUS INTERFERENCE WITH AN EXPECTANCY IS AN INTENTIONAL TORT AND THE DISAPPOINTED BENEFICIARY IS THE PERSON WITH STANDING TO BRING THE CLAIM Tortious interference with an expectancy has been a recognized tort theory in Florida since 1966.  Allen v. Leybourne 190 So.2d 825 (Fla. 3d DCA 1966) (“when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action”).    Several years later, the Third District Court of Appeals upheld the following jury instructions in a tortious interference with an expectancy case: The issues for your determination on the claim of the Plaintiff are whether prior to a certain date, Decedent had a formed, fixed intention to give Plaintiff a share of his estate, and, if […]

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DeWitt and the Importance of Adequate Probate Remedies

Written by on Oct 6, 2015| Posted in: Estate Litigation

When is “failure to exhaust probate remedies” properly asserted as an affirmative defense to a tortious interference with an expectancy action?  The answer is almost never.  (Click here for information about the tort action.) The Dewitt v. Duce, 408_So.2d_216, (Fla. 1981), holding can be paraphrased as follows:  The State of Florida has an interest in the orderly succession of property and therefore prefers that a dispute concerning a decedent’s property be conducted in probate shortly after the decedent’s death rather than in a civil action years later.  Therefore, if you can achieve exactly the same result with a Will contest that you could with a tortious interference law suit, then you must chose the Will contest.  If you do not chose the Will contest, then you will be unable to sue for tortious interference later for one simple reason:  “The probate of a Will in Florida is conclusive of its due […]

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Florida Court Determines Wife Unduly Influenced Husband

Written by on May 8, 2015| Posted in: Probate Litigation

Florida law is well established that when a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.   As probate litigators, we frequently encounter situations where a court is presented with circumstances suggesting that a elderly person has unfortunately been taken advantage of by their own spouse.  Most often the wrongdoer is a person who marries the victim just prior to death and changes the victim’s estate plan to disinherit family members who were previously the intended beneficiaries of the victim’s long standing estate plan. One such case was recently presented in Palm Beach County, Florida where the court upheld the challenge by a testator’s daughter who sought to invalidate the will that was executed a year after the […]

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Proving Undue Influence

Written by on Feb 6, 2015| Posted in: Probate Litigation

Proving that a will was procured by the undue influence of another can sometimes be difficult.  Often, this type of conduct occurs in secret, away from the watchful eyes of family and loved ones and involves the victimization of an elderly, ill person at the hands of someone he or she trusts.  Florida law recognizes this realty and the legislature has provided a means by which plaintiffs may not only prove undue influence, but also shift the burden of proof so that that defendant must offer his own evidence. Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts.  First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed.  If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff.  Fla. Stat. § […]

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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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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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Priority in Florida Probate Proceedings

Written by on Nov 26, 2013| Posted in: Probate Litigation

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

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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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