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Florida Probate Blog

Category: Probate Litigation

Attorney-Client Privilege in Probate Litigation

Written by on Nov 18, 2016| Posted in: Probate Litigation

Death, Lawyers, and Loose Lips:  Third District Court of Appeals Clarifies Distinction Between Ethical duty of Confidentiality from Evidentiary Privilege The attorney client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.  For example, see Dennis v. Codrington, 21 Eng.Rep. 53 (1580) (finding “A counselor not to be examined of any matter, wherein he hath been of counsel”).  Thus, it is generally accepted by Florida probate lawyers that the ethical rule of attorney-client confidentiality limits disclosure of information acquired during the scope of the representation.  The only exception is where the client consents to the disclosure.  Rule 4-1.6(a) of the Florida Rules of Professional Conduct articulates the prohibition of disclosure of confidential information: “A lawyer must not reveal information relating to representation of a client…unless the client gives informed consent.”    The sanctity of the […]

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Convicted Felons Cannot Serve as Personal Representative

Written by on May 14, 2016| Posted in: Probate Litigation

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

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Attorney’s Fees in Will Contest

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

William Anderson v. Laura McDonough, Personal Representative of the Estate of Helen E. Anderson (41 Fla.L.Weekly D884b), April 15, 2016 In a recent opinion, the Second District Court of Appeals held that the personal representative of an estate was not entitled to a personal judgment for attorney’s fees against an unsuccessful will contestant.  The trial court entered an order awarding the estate $51,897 in attorney’s fees against William Anderson for his unsuccessful challenge to his mother’s Last Will & Testament.  The Second DCA reversed the award because it was unsupported by the law and by the facts of the case.   Anderson and his brothers were excluded from their mother’s will, which left everything to their aunt.  Anderson brought a will contest but the court upheld the will as valid.  The estate then filed a motion for attorney’s fees against Anderson pursuant to Fla. Stat. s. 733.106, which provides that: […]

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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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