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 can continue on and the estate may be completed sooner.);
• Clear recitation of which party receives what specific assets;
• A time certain for making the payments (if any);
• What will happen to later-discovered assets (or expenses); and
• Time and responsibility for filing documents to end lawsuit. (more…)

Third District Court of Appeals Upholds Terms of Settlement Agreement Between BeneficiariesThe sanctity of the signed settlement agreement was confirmed on October 29, 2008 when the Third District issued its opinion in Charles Brindle v. Richard W. Brindle, –So.2d–, 2008 WL 4722746; 33 Fla.L.Weekly D2528a (Fla.4th DCA October 29, 2008). Brindle originated in the form of two competing orders from the civil and probate benches in Monroe County. The first order adopted and approved a written settlement agreement by which the sons of the decedent, Dorothy Brindle, resolved a will contest among themselves and agreed to a global reallocation and distribution of all of their inheritance given to them under Dorothy’s will.

Fast forward two years, when the Personal Representative of Dorothy’s estate (who also signed the settlement agreement) discovered during the course of asset distribution that there were insufficient assets in the estate to pay the expenses. Monroe County Probate Judge Richard Payne decided to “reopen” the settlement agreement “for purposes of setting aside so much of the settlement agreement as is in conflict with this order” and ordered Dorothy’s sons to split the expenses of the estate as a matter of convenience. (more…)