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Florida Probate Blog

Category: Probate Litigation

Power of Attorney – What happens when the holder says no?

Written by on Mar 16, 2009| Posted in: Probate Litigation

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim. Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for […]

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How Far May the Witness Wander?

Written by on Mar 12, 2009| Posted in: Probate Litigation

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence. A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate.

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Hey! Where’s My Gift?

Written by on Mar 9, 2009| Posted in: Probate Litigation

Ademption: Specific Gifts Not Owned At Time of Will Execution Do Not Adeem Ademption is a probate concept wherein a determination is made as to the disposition of property gifted under a person’s will, but not in existence (or not in the person’s probate estate) when the person dies. For specific property, the general rule is that the property is adeemed, and the gift fails. For example, if a person gifts a piece of jewelry to a specific person, but the jewelry was not owned by the person at the time of her death, the gift would be adeemed and the person would receive no gift at all. However, a general gift, usually cash gifts, is never adeemed. If there is not enough money in the probate estate to satisfy the gift, then other assets in the residuary estate are liquidated or sold to raise the money necessary to satisfy […]

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Ambiguity and Extrinsic Evidence in Will Construction

Written by on Feb 17, 2009| Posted in: Probate Litigation

Third District Finds Latent Ambiguity in Will Language and Allows Parol Evidence to Determine Testator’s Intent What type of Proceeding is a Will Contruction Action? Under the Florida Probate Code, as in most other jurisdictions, proceedings to construe a will are adversary proceedings, unless otherwise ordered by the court, in which the moving party must give formal notice to all interested parties. After service of formal notice, the proceedings are to be conducted, as nearly as practicable, similar to suits of a civil nature and are to be governed by the Rules of Civil Procedure.

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Paternity: Can a Decedent’s Body Be Exhumed for Genetic Testing?

Written by on Jan 8, 2009| Posted in: Estate Litigation

State’s highest court authorizes opening of decedent’s grave to resolve a claim by an individual to be the decedent’s child. The rights of relatives to the body parts of their deceased family members has been the topic of much legal debate. [See Blog Entry dated September 19, 2008 Wait, Don’t Throw That Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?] The extent to which a court has authority over the dead body of the decedent was examined in the recent published opinion by the Maine Supreme Court in In re Estate of Kingsbury, 946 A.2d 389 (2008). Estate of Kingsbury involved the probate of the estate of Bruce H. Kingsbury, who died in 2006, leaving a will nominating his daughter, Robin Whorff, […]

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No Contest Clauses

Written by on Jan 6, 2009| Posted in: Probate Litigation

Alabama, Ohio, and 13 Other States Need to Follow Florida’s Lead Many decedents in a variety of jurisdictions place no contest provisions in their wills in order to prevent their family members from fighting over the inheritance following death. These clauses, sometimes referred to as in terrorem clauses are defined by Black’s Law Dictionary as ‘[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.’ For example, I have seen the clauses similar to this in many wills in an effort to avoid will contests: “If any beneficiary under this will in any manner, directly or indirectly, contests or challenges this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner […]

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Mediations and Settlement Agreements

Written by on Jan 6, 2009| Posted in: Estate Litigation

Third District Court of Appeals Opinion Serves as a Reminder to address crucial issues. A candid discussion between counsel regarding settlement and mediation is generally a good idea at some point in any type of litigation, especially will and trust contests and similar probate issues. Since these cases are almost always inter-family case, settlement should be attempted to try to keep the family intact. A good settlement is usually a division of assets that neither side particularly likes, but with which both sides can live. It is generally a good idea to include at least a discussion of these items in any probate settlement agreement: • A mutual release; • Determination of the validity of the will (if it is agreed that the will is invalid, then a prior will must be admitted to probate and the estate fiduciary must be appointed. If the will remains valid, the estate fiduciary […]

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Adopted Adults: Court Applies Statute Preventing Adopted Adults From Receiving Inheritance.

Written by on Dec 11, 2008| Posted in: Estate Litigation

I’m always curious to see how remote the conclusion of a case involving application of a probate rule is to the legislative intent of the rule at the time of it becomes law. One such case recently surfaced in New England where the court’s application of a Rhode Island intestacy statute resulted in what may be considered an unjust and bizarre result. In Fleet Nat’l Bank v. Hunt 944 A.2d 846 (R.I. 2008) the court faced the estate administration of Art Hadley, a self-made entrepreneur and successful New England businessman, who died in 1941; survived by his wife, Frances and his two children, Thomas and Sarah. After Art Hadley’s death, Thomas married Betty, who had two children from prior relationships: Janet Hunt and Lucille Foster. A few years after Frances died, Thomas formally adopted Janet Hunt and Lucille Foster, both of whom were over eighteen years old. In 1993, Thomas […]

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Time to Draft New Rule for Probate Appellate Procedure?

Written by on Dec 1, 2008| Posted in: Probate Litigation

Fourth District Court of Appeals Ruling Reminds Practitioners of Need for Rules Clarification By Adrian P. Thomas The appeal of a probate court decision can be tricky. The appellate process is full of land mines, and the probate court appellate procedure is no exception. One of the most common issues that needs to be immediately addressed by the practitioner is to determine whether the appeal is premature. This question can be very challenging in the probate context because the administration of an estate and/or trust is a series of events that can be viewed as both temporal and final at the same time. What Probate Court Orders Can Be Appealed? One of the first rules to learn is that appeals may not be taken from interlocutory orders entered in the probate process. The party who wishes to seek appellate review of an order by the probate court is required to […]

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Florida’s Slayer Statute

Written by on Nov 26, 2008| Posted in: Estate Litigation

Why The Slayer Rule May Prevent the Slayer’s Estate From Benefiting From the Slayer’s Act By Adrian P. Thomas Nullus Commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) Some readers may be familiar with one of my cases that has been in the headlines recently.  When appropriate, the Florida Slayer Rule can be applied to prevent an injustice and to preclude a killer from benefiting from the crime. Florida, like many other states, has adopted the Uniform Probate Code’s version of the Slayer Rule. See Fla.Stat. §732.802. Unif. Probate Code 2-803 (amended 1993), 8 U.L.A. 211, 211-12. The relevant part of the statute reads:

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