Ademption: Specific Gifts Not Owned At Time of Will Execution Do Not Adeem

Ademption is a probate concept wherein a determination is made as to the disposition of property gifted under a person’s will, but not in existence (or not in the person’s probate estate) when the person dies. For specific property, the general rule is that the property is adeemed, and the gift fails. For example, if a person gifts a piece of jewelry to a specific person, but the jewelry was not owned by the person at the time of her death, the gift would be adeemed and the person would receive no gift at all. However, a general gift, usually cash gifts, is never adeemed. If there is not enough money in the probate estate to satisfy the gift, then other assets in the residuary estate are liquidated or sold to raise the money necessary to satisfy the gift. Read the rest of this entry

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. Read the rest of this entry

Lost Will: Evidence Has To Be Sufficient to Overcome Presumption that Will Was Revoked When It Cannot Be Located After Death.

On October 1, 2008, The Florida Fourth District Court of Appeals reversed a Broward County Probate Court ruling in Balboni vs. LaRocque 33 Fla.L.Weekly D2314a ( 4th District. Case No. 4D07-3991. October 1, 2008) holding that the evidence presented was legally insufficient to rebut the presumption of intentional revocation. Read the rest of this entry