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Florida Probate Blog

Category: Trust Litigation

Divorce Does Not Dissolve Beneficial Interest in Trust

Written by on Apr 29, 2009| Posted in: Trust Litigation

Court Refuses to Use Merger to Disinherit Former Spouse.What is the doctrine of merger? The doctrine of merger is set forth in the Restatement of (Third) Trusts §69, which provides that if the legal title to the trust property and the entire beneficial interest become united in one person, the trust terminates. The comments to this section of the Restatement also states that if by inter vivos transfer, will, or operation of law the entire beneficial interest in trust property passes to the trustee, the trust terminates and the trustee holds the property free of trust. Thus, if the sole beneficiary of a trust dies intestate and his interest passes to the trustee as his heir, merger occurs and the trust terminates. Similarly, if the trustee is also the life beneficiary of the trust, and if the sole remainder beneficiary, holding an indefeasibly vested remainder interest in the trust, assigns […]

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Substance over Form: What is necessary for a valid transfer of property into a trust?

Written by on Apr 16, 2009| Posted in: Trust Litigation

Court holds trust instrument was effective in transferring both real and personal property to the trust.Prior to Florida’s adoption of the new Trust Code, which became effective on July 1, 2007, the common law held that in order for a trust to be created, the settlor was required to make a present and unequivocal disposition of property so that he or she is no longer vested with its full legal and equitable ownership. For example, it has been held in Florida that the failure of a settlor to execute a deed which conveyed real estate to the trustees of a trust precluded the creation of a “living trust” for the realty. Flinn v. Van Devere, 502 so.2d 454 (Fla. 3d DCA 1986). Although the new Trust Code is now effective, it provides that the common law of trusts and principles of equity supplement the Code, except to the extent modified […]

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Can a child be unintentionally excluded from a parent’s revocable trust?

Written by on Apr 16, 2009| Posted in: Trust Litigation

In Florida, and many other states, there are protections written into the probate code which purport to protect children from unintentional disinheritance by one or both of their parents. Florida’s pretermitted child statute is codified at Fla. Stat. §732.302 and is intended avoid an unintentional or inadvertent disinheritance of a child. Florida’s statute is modeled in part after the position adopted by the Restatement of Property and the Uniform Probate Code. The Restatement of Property provides: § 9.6 Protection Of Child Or Descendant Against Unintentional Disinheritance (a) A child of the testator, or under some statutes a descendant of the testator, who was not provided for in the testator’s will may be entitled to a specified share of the testator’s estate as provided by statute. Most of the statutes, including the Original and Revised Uniform Probate Code, only protect a child who was born or adopted after the will was […]

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Breach of Trust

Written by on Mar 6, 2009| Posted in: Trust Litigation

Third District Finds Miami Probate Court Erred in Requiring Litigants to Prove Undue Influence as Part of a Breach of Fiduciary Claim. Court Finds Lawyer Used Client’s Money as His Own “Piggy bank.” On February 25, 2009, the Third District Court of Appeals released its much anticipated opinion regarding the Brigham Tree Farms Trust litigation. Brigham v. Brigham, –So.2d–, 2009 WL 454492; (Fla. 3rd DCA, Feb. 25. 2009), 34 Fla.L.Weekly D443b involved, in part, a dispute over the trust assets which originated as a the multimillion dollar tree farm encompassing around 800 acres of land in western North Carolina. In order to understand the facts of the case, you will probably need to make a family tree outlining the various parties and there relevance in connection with EFP Brigham and his wife Marion, and the table consanguinity:

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Trust Revocation

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

Can a joint and contractual trust be revoked by sole surviving settlor? Florida law recognizes that parties may execute joint and mutual testamentary instruments. One Florida court held that a joint and mutual will may be the product of a contract providing that it cannot be revoked except by the mutual consent of the parties and providing that it be binding on the survivor, and where the terms of the will clearly disclose that it is the product of such a contract, the will itself is sufficient evidence to establish the contract. See, In re Estate of Rowland, 504 So.2d 543 (Fla. 4th DCA 1987).

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Trust Litigation and Forum Non Conveniens

Written by on Dec 17, 2008| Posted in: Trust Litigation

Second District Court of Appeals Finds Old Trust Code Inapplicable to Action Based on Undue Influence and Breach of Fiduciary Duty and Notes Distinction Between Concepts of Venue and Jurisdiction Frequently, when representing trust beneficiaries or trustees, I encounter a defensive argument that Florida isn’t the proper venue for the trust litigation. Venue is the legal concept of the appropriate location for a lawsuit to be heard by a Court. Venue is a concept distinct from jurisdiction, which focuses on the authority of a court to hear a particular case. Venue is concerned with the geographical location of the court where a lawsuit is commenced. However, unlike personal jurisdiction, there is no constitutional requirement for proper venue in order to have a valid judgment.

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Testamentary Capacity: Do We Need Legal Reform?

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

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court […]

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What is a Resulting Trust?

Written by on Nov 10, 2008| Posted in: Trust Litigation

Resulting trusts are a fiction of the law that arises where property is transferred or acquired by one under facts and circumstances which indicate that the beneficial interest is not intended to be enjoyed by the holder of legal title. A case some readers may have read about in recent newspaper headlines involved a legal theory based on a resulting trust remedy. In City of Boston v. Roxbury Action Program, Inc., 68 Mass. 1101, 865 N.E2d 1140 (2007) the city of Boston became aware that a landowner, which was obligated to convey land to the city due to an inability to obtain a government commitment for housing development on property. The City went to Court claiming that the landowner was holding the property for the City under a resulting trust, since it wasn’t, in the city’s view, the parties’ intention for the landowner to hold the beneficial interest in the […]

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Trust Language and Settlor’s Intent

Written by on Oct 23, 2008| Posted in: Trust Litigation

Learn the Language: Fifth District Court of Appeals Reverses Probate Judge and Predicates Opinion On its Own Perception of Trust Language and “Settlor’s Intent”In Brown v. Miller, — So.2d —-, 2008 WL 4600940, 33 Fla.L.Weekly D2433c, Fla.App. 5 Dist., October 17, 2008 (NO. 5D07-1356, 5D07-1288) the Fifth District Court of Appeals reversed Orange County Judge Lawrence Kirkwood’s order which had invalidated a seven million dollar transfer from a testamentary trust to its lifetime beneficiary. The Wife Elinor Miller set up a trust naming her husband Bill as the trustee and lifetime beneficiary (the “Elinor Miller Trust”). After her death the assets remaining in the trust (after her charitable bequests and distributions to family members) were divided into three separate sub-trusts, designated as Trust A-1, Trust A-2 and Trust B with each serving a distinct purpose. The Elinor Miller Trust provided that the Trustee should pay Bill the income from A-1 […]

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Undue Influence and Trust Revocation

Written by on Sep 25, 2008| Posted in: Trust Litigation

Is Florida legislation needed to address the presence of undue influence in trust revocation situations involving vulnerable elderly adults? It is no secret that Florida is home to a geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity.  A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old.[1] Many Floridians who have revocable trusts as an aspect of their estate planning are susceptible to what I consider to be an area of concern as to the existing status of the law as it stands in Florida.  Specifically, I am concerned that existing decisional case law in Florida allows for persons, whose capacity to […]

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