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). (more…)

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. (more…)

Third District Upholds Palm Beach Probate Court’s Appointment of Guardian Not Related to the Ward by Blood or Marriage.

The decision of whether and when to have a loved one declared incompetent is a difficult and challenging process, and should involve an attorney who is familiar with the issues and procedures of guardianship law. In Florida, the guardianship statutes provide for certain procedures to protect the rights of the person who is allegedly incompetent.

The process generally involves the filing of a Petition to Determine Incapacity. Fla.Stat. §744.331(1). Thereafter, the Court will appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated. Fla.Stat. §744.331(4). Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is necessary. (more…)

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. (more…)

Necessary and Indispensable Parties in Trust Lawsuits:  Second District Clarifies Rule in Trust Probate Dispute

Who is a Necessary Party?

The term “necessary party” has been defined in a variety of ways, but generally most litigators will agree that a “necessary party” is:

(1) as a party whose rights and interests are to be affected by a court order; and
(2) whose actions with reference to the subject matter of litigation are to be controlled by the court order; or
(3) a person without whose joinder as a party an effective court order or judgment cannot be rendered in the plaintiff’s favor; or
(4) A person who is materially interested in the subject matter of a suit and who will be directly affected by an adjudication of the controversy.

Whatever definition one uses, it is undisputed and well-settled law that if a necessary party hasn’t been named in any kind of lawsuit, then court cannot proceed until that person is joined. (more…)

Does creation of joint accounts with survivorship rights alter the dispositive provisions of a pre-existing last will and testament?

The question of whether, and under what circumstances, a joint, Totten, or tentative trust in bank deposits can be revoked, either expressly or impliedly, by a written or oral declaration made by the settlor during his lifetime or by the terms of the settlor’s will is often debated among probate litigators and judges. There are few appellate opinions in Florida providing clear guidance for some scenarios. However, Florida and most other states follow the rule adopted by the Restatement of Trusts 2d §58 comment (c) that a tentative trust is revoked by the depositor’s will, if, by its terms, it indicates explicitly or implicitly that the depositor intended to effect such a revocation. Litsey v. First Federal Sav. & Loan Association 243 So.2d 239 (Fla. DCA 1971) (recognizing rule.) (more…)