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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

Proving Testator’s Mental Capacity

Written by on Jun 25, 2014| Posted in: Estate Litigation

Florida Statute 732.501 requires, amongst other things, that the testator be “of sound mind” when executing the Will. Testamentary capacity means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty and the practical effect of a will. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. However, competency is generally presumed, and the burden of proving incompetency is on the contestant F.S. 733.107 (10; In Re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972) This is a heavy burden to overcome based on the presumption of competency. It has been stated that “even a lunatic may make a will….in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647, 649 (Fla. 1954) Even the showing of incapacity on other days does […]

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Successor Personal Representative May Sue Attorney for Estate

Written by on Jun 10, 2014| Posted in: Estate Litigation

FLORIDA APPELLATE COURT RULES SUCCESSOR PERSONAL REPRESENTATIVE IS ALLOWED TO SUE A FORMER PERSONAL REPRESENTATIVE’S ATTORNEY FOR MALPRACTICE Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) A lawsuit was filed in Florida alleging the initial personal representative, with her lawyer’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors.  A trial court ruled that a successor personal representative does not have standing to bring a legal malpractice action against the Florida attorney who was hired by the initial personal representative to aid her in the administration of the estate. The appellate court reversed and stated that the powers, duties, and obligations of the personal representative apply not only to the estate, but also to other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and […]

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Oral Agreement to Divide Inheritance

Written by on Jun 10, 2014| Posted in: Estate Litigation

ORAL AGREEMENTS SUFFICIENT UNDER FLORIDA LAW TO DIVIDE INHERITANCE FROM PARENTS Can siblings verbally agree to divide an inheritance prior to their parent’s or grandparent’s death?  The answer in Florida is Yes. In is widely accepted that in order for an agreement between parties to be legally binding and enforceable by a court or judge, at least four elements must be present:  (1) offer; (2) acceptance; (3) specific terms; and (4) consideration.  What is consideration? Consideration is simply a bargained for change in legal position between the parties.    One way to describe how the element of consideration is usually viewed by courts is to look at whether or not the parties making the promises to each other are either doing something that they are not under a legal obligation to do;  or refraining from doing something that they have a legal right to do (i.e., surrender or forebear from asserting […]

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Pretermitted Child: Paternity vs. Adoption

Written by on Apr 23, 2014| Posted in: Probate Litigation

The Florida legislature enacted a statute to protect the inheritance rights of children born after a decedent executed his or her Last Will & Testament.  The statute, known as a “Pretermitted Children” and found at Fla. Stat. §732.302, provides that “when a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received it the testator had died intestate.”  The statute is predicated on the notion that parents intend for their children to inherit from them and that if a child was born after a parent executes a Will that it was probably an oversight not to execute a new […]

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Probate and Prenuptial Agreements

Written by on Mar 11, 2014| Posted in: Probate Litigation

What impact does a prenuptial agreement have upon title to the assets of a trust and the rights of trust beneficiaries? The importance of that question was highlighted by a recent Second District Court of Appeals case, Shakespeare v. Prince, 129 So.3d 412 (Fla. 2d DCA 2013). In Shakespeare, Mr. and Mrs. Shakespeare entered into a prenuptial agreement to maintain their assets separately. Mrs. Shakespeare, who had inherited a substantial fortune from her prior marriage, bought a home for the couple in Collier County. She subsequently created a trust and, waiving her homestead rights, transferred title of the home to the trust, making the home a trust asset. Mrs. Shakespeare’s trust provided that, upon her death, Mr. Shakespeare would receive only a life estate in the home; upon Mr. Shakespeare’s death, title to the home would pass to Mrs. Shakespeare’s son from her first marriage. This relatively straight-forward estate plan […]

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FLORIDA PRENEED GUARDIAN

Written by on Feb 20, 2014| Posted in: General

FLORIDA PRENEED GUARDIAN AS PART OF YOUR ESTATE PLAN Everyone’s estate plan is different.  Some people are content with having only a will and trust to manage and distribute their financial assets after death.  However, others find it appropriate to name a specific person to take care of their personal and financial well-being in the event that he or she becomes incapacitated during his or her lifetime.  The Florida legislature has provided such an avenue through the enactment of Fla. Stat. 744.3045, which is the law dealing with a preneed guardian. The statute states that “[p]roduction of the declaration (of a previously-designated preneed guardian) in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.  The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.”  What if […]

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How Long Does a Beneficiary Have to Challenge the Actions (or Inaction) of a Trustee?

Written by on Feb 10, 2014| Posted in: Trust Litigation

Typically, a trustee serves its accounting on beneficiaries which discloses all matters involving the trusts.  Under normal circumstances, a beneficiary then has four years from receipt of the accounting to bring an action for breach of fiduciary duty.  If an accounting is not provided to the beneficiaries, or when the accounting falls short of properly informing a beneficiary of what is happening with the trust assets, then the Statute of Limitations never begins to run.  If a beneficiary has actual knowledge of the matter not adequately disclosed in the accounting, and it can be proven by clear and convincing evidence that the beneficiary had actual knowledge, or if there has been a repudiation of the Trust by the Trustee and the beneficiary has actual or constructive knowledge of the repudiation, then the four-year statute of limitations will bar that claim, Fla. Stat. §736.1008(3)(a).  The fact that a Trustee has not […]

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Power of Appointment

Written by on Jan 2, 2014| Posted in: Probate Litigation

A Cautionary Tale from the First District Court of Appeal:  exercise a power of appointment with great care to avoid harsh results. In general, Florida Circuit Courts sit in equity over trust and will disputes and are thus empowered to look to the intent of the settlor of a trust or testator of a will when deciding the rights of litigants.  However, Florida’s 1st District Court of Appeal recently authored an opinion which indicates that, in situations regarding powers of appointment, strict compliance with the written instrument is absolutely necessary, regardless of the apparent intent of the testator attempting to exercise the power through a provision in her will.  The case, Cessac v. Stevens, 2013 Fla. App. LEXIS 18525 (Fla. Dist. Ct. App. 1st Dist. Nov. 20, 2013), is one of only two Florida cases which speak directly to this issue. A power of appointment is, generally speaking, the authority […]

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WILL DISPUTES AND MEDIATED SETTLEMENT AGREEMENTS

Written by on Dec 19, 2013| Posted in: Estate Litigation

by Adrian Thomas When can a mediated settlement agreement be set aside? The First District Court of Appeal recently decided Pierce v. Pierce (In re Estate of Pierce), 2013 Fla. App. LEXIS 19597, 2013 WL 6438955 (Fla. Dist. Ct. App. 1st Dist. Dec. 10, 2013), which succinctly addressed the issue of when a mediated settlement agreement may be set aside or vacated. Pierce involved a will dispute between two sisters, Linda and Tamra Pierce.  After contentious litigation, the parties went to mediation.  The morning after mediation, Linda had second thoughts about the settlement agreement and sought to set it aside (vacate) it.  The lower court judge held that he could not find that Linda had “freely, knowingly and intelligently entered into the agreement.”  The First DCA reversed, not only because the lower court’s finding was unsupported by competent substantial evidence, but also because the lower court applied the wrong standard.  […]

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Priority in Florida Probate Proceedings

Written by on Nov 26, 2013| Posted in: Probate Litigation

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

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