Marshall v. Marshall opens the doors to federal court for undue influence and probate claims

For many years, many probate litigators, myself included, believed that the so-called probate exception to federal jurisdiction served to prevent federal courts from adjudicating any matters that were even slightly related to a probate estate.  This whole notion was turned on its head in 2006 when Justice Ginsberg wrote the majority opinion in Marshall v. Marshall, 547 U.S. 293 (2006).  With the second anniversary of the death of Anna Nicole Smith approaching this fall, I think it is a good time to review the holding of Marshall and also view how lower federal courts have interpreted its holding since 2006.

Many people are familiar with the details of the case:  Vickie Lynn Marshall (Vickie), a.k.a. Anna Nicole Smith, was the surviving widow of J. Howard Marshall II (J. Howard), who died without providing for Vickie in his will. According to Vickie, J. Howard intended to provide for her through a gift in the form of a “catchall” trust. On the other side of the case was E. Pierce Marshall (Pierce), J. Howard’s son, who was the ultimate beneficiary of J. Howard’s estate plan. (more…)

Court Refuses to Throw Out Case Based on Technical Deficiency

Contesting a Last Will and Testament in Probate Court requires the skill and expertise of a lawyer who is familiar with both the substantive law governing probate litigation and also the procedural rules contained in the Florida Probate Rules and Rules of Civil Procedure. One of the areas about which a probate litigator must have knowledge is whether to and when it is necessary to serve papers by what is known as “formal notice.” The failure to accomplish this type of service can have significant implications on the substantive legal rights of litigants in probate court. (more…)

Lis Pendens Law Changed by Florida Legislature

A lis pendens is Latin for “suit pending.” Typcially it refers to a pending lawsuit or notice of litigation that is recorded in the same county as the physical location where the title to the real estate has been recorded.

There are a variety of reasons for filing and recording a lis pendens, however, the one most frequently quoted is for a plaintiff in a lawsuit, including probate and trust litigation cases, to serve notice of plaintiff’s claim on the real property, so that any alienation of the property takes subject to the plaintiff’s claim. In other words, very few potential purchasers will purchase real estate which has a claim against it thus the lis pendens has the practical effect of preventing sale while the lawsuit continues which is very important if the real estate is the asset that will be used to satisfy a judgment. It is well settled in Florida that the purpose of a notice of lis pendens is to warn everyone that the title to the property is in litigation and that there is a cloud on the title to the property involved.

One Federal Court has ruled that Under Florida law, a party taking an interest in the affected property subsequent to the recording of notice of lis pendens takes subject to the interests of the party filing the notice, as ultimately vindicated in the litigation as to which notice has been given. In re Whitehead, 399 B.R. (Bankr. S.D.Fla. 2009).

The importance of understanding the general purpose, notice requirements, and the practice and procedure of lis pendens in Florida cannot be understated. To this end, it is also significant to take notice of the changes that were signed into law by the Governor and became effective July 1, 2009.

First, Fla.Stat. §48.23 was amended so that any person acquiring for value an interest in the real estate or personal property during the pendency of an action involving real property, (other than a party to the proceeding or the legal successor by operation of law, or personal representative, heir, or devisee of a deceased party to the proceeding), shall take such interest exempt from all claims against the property that were filed in such action by the party who failed to record a notice of lis pendens or whose notice expired or was withdrawn or discharged, and from any judgment entered in the proceeding, notwithstanding the provisions of s.695.01, as if such person had no actual or constructive notice of the proceeding or of the claims made therein or the documents forming the causes of action against the property in the proceeding.

Thus, the revisions permit real estate to be sold exempt from all claims asserted in an action when the lis pendens has expired or been withdrawn or discharged.

The new revised statute also extends the time to thirty days for a holder of an unrecorded interest to intervene in the action. Previously, only twenty days after recording of the notice was permitted.

Finally, the new statute simplifies the information necessary for filing a valid lis pendens and provides for the control and discharge of a lis pendens that no longer affects the property.

Appellate Procedure: Is the Case Ready for Appeal?

Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order. (more…)

The Florida Probate Code recently underwent some critical revisions sponsored by the Governmental Affairs Policy Committee.  These revisions were approved by the Governor and took effect July 1, 2009.  Trust and Estate practitioners will want to take note of these changes in the Code: (more…)

I recently read the following article, which was written by Dr. Ira Turkat, a psychologist in Florida, and found it fascinating because it addresses many of the issues I encounter in the undue influence cases that I litigate.  With Dr. Turkat’s permission, I am reproducing this very insightful article on my blog.

Psychological Aspects of Undue Influence
By Ira Daniel Turkat

Undue influence refers to a person’s free will being usurped by the will of another. The problem is of significant concern when dealing with deeds, trusts, and wills of the elderly or the debilitated. Frail individuals with significant financial assets are vulnerable targets for persons seeking advantage. When such manipulations occur, the consequences can be devastating.

Manipulating a person’s free will is essentially a psychological phenomenon. As such, a firm understanding of the psychological processes that underlie undue influence can be of enormous benefit to the attorney involved in these matters. This is especially so given the burden of persuasion inherent in these cases, the fact that the attorney may be forced to rely primarily on inferential and circumstantial evidence, and the task of having to state explicitly and convincingly how undue influence unfolded in the matter at hand. (more…)

I have written in this blog about the importance of organ donations and the legal implications associated with those gifts.  (See “Wait, Don’t Throw That Away, September 2008).  Recent developments in our legislature underscore the continued importance of maintaining a pulse on this constantly changing area of the law. (more…)

Court Holds that Obtaining California Driver’s License and Registering to Vote in California Was Not Alienation of Florida Homestead

Florida is well known for its natural beauty and also for its protection afforded to its citizen’s homestead.  These protections have been in place since Florida adopted its state Constitution in 1885.  Florida’s homestead exemption is found in Article X, §4 of the Florida Constitution, and provides, in relevant part: (more…)

Will Contest Lawyers Awarded Fees From Proponent of Forged Last Will and Testament

Generally, each party who brings or defends a lawsuit is each responsible for their own attorneys fees, regardless of who wins or loses, unless there is a governing statute or contract that specifies from whom or where the fees should be paid.  This is generally true in the probate arena as well, that persons who hire lawyers to bring a contest or lawsuit against a last will and testament are responsible for their own fees, even if they win, unless certain special circumstances are shown.  One of these is the idea that the services rendered by the lawyer brought about a “benefit” to the estate.  I have previously written about this concept in my blog.  (more…)