Fourth DCA overturns Broward Probate Court’s eviction of son from his deceased mother’s apartment.

My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4^th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead. Read the rest of this entry

State v. Marshall ends after six month trial.

“Money is like manure; it’s not worth a thing unless it’s spread around.”—Brooke Astor

I have previously written about Meryl Gordon’s recent book Mrs. Astor Regrets: The Hidden Betrayals of a Family Beyond Reproach as an outline of what can happen when wealth meets the dysfunctional family. As readers may know, the late philanthropist Brooke Astor’s probate estate was the subject of litigation and criminal charges in New York.

Brook Astor inherited over $60 million when her husband died in 1953. Amazingly, between then and 2003, she changed her last will and testament no less than 38 times. Evidently, Ms. Astor detested her son, Anthony Marshall’s third wife, Charlene, and began making changes to her will at the end of her life to insure that Charlene did not inherit any of the family fortune.

Prosecutors charged in an eighteen count indictment that Anthony and his lawyer, Francis Morrisey, conspired to make changes to Ms. Astor’s last will and testament long after she had the mental capacity to understand what was happening. Mrs. Astor, who had Alzheimer’s disease, was 105 when she died in August 2007. There has also been evidence introduced in the trial suggesting that Marshall and his lawyer forged Ms. Astor’s name on the last will and testament so as to shift almost $200 million to Marshall and Charlene. Read the rest of this entry

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim.

Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege the following elements: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. Schilling v. Herrera, 952 So.2d 1231 (Fla. 3d DCA 2007). For example, a cause of action for the tort of interference with a testamentary expectancy is available where the defendant has maliciously destroyed a will, and the plaintiff is unable to reestablish the destroyed will in a probate proceeding. In re Estate of Hatten, 880 So.2d 1271 (Fla. 3d DCA 2004). Read the rest of this entry

Alabama, Ohio, and 13 Other States Need to Follow Florida’s Lead

Many decedents in a variety of jurisdictions place no contest provisions in their wills in order to prevent their family members from fighting over the inheritance following death. These clauses, sometimes referred to as in terrorem clauses are defined by Black’s Law Dictionary as ‘[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.’

For example, I have seen the clauses similar to this in many wills in an effort to avoid will contests:

“If any beneficiary under this will in any manner, directly or indirectly, contests or challenges this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary has predeceased me without issue.” Read the rest of this entry

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. Read the rest of this entry

Fourth District Court of Appeals Ruling Reminds Practitioners of Need for Rules Clarification

By Adrian P. Thomas

The appeal of a probate court decision can be tricky. The appellate process is full of land mines, and the probate court appellate procedure is no exception. One of the most common issues that needs to be immediately addressed by the practitioner is to determine whether the appeal is premature. This question can be very challenging in the probate context because the administration of an estate and/or trust is a series of events that can be viewed as both temporal and final at the same time.

What Probate Court Orders Can Be Appealed?

One of the first rules to learn is that appeals may not be taken from interlocutory orders entered in the probate process. The party who wishes to seek appellate review of an order by the probate court is required to await the entry of a final order or decree before seeking review of the allegedly erroneous interlocutory order. For example, an order setting aside and declaring letters of administration void ab initio is not an appealable order, nor is an order dismissing a petition in probate for construction of a will. Read the rest of this entry

Why The Slayer Rule May Prevent the Slayer’s Estate From Benefiting From the Slayer’s Act

By Adrian P. Thomas

Nullus Commodum capere potest de injuria sua propria (No man can take advantage of his own wrong)

Some readers may be familiar with one of my cases that has been in the headlines recently.  When appropriate, the Florida Slayer Rule can be applied to prevent an injustice and to preclude a killer from benefiting from the crime.

Florida, like many other states, has adopted the Uniform Probate Code’s version of the Slayer Rule. See Fla.Stat. §732.802. Unif. Probate Code 2-803 (amended 1993), 8 U.L.A. 211, 211-12. The relevant part of the statute reads: Read the rest of this entry

Fifth District Rules Plain Language Govern Interpretation of Ante-Nuptial Agreement

What is a Prenuptial Agreement? A Premarital or prenuptial or antenuptial agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The agreement typically speaks to issues relating to property and can involve virtually any interest or rights in any present or future real or personal property rights. Prenuptial agreements can also allocate rights and risks to the parties’ income and earnings, both active and passive. Read the rest of this entry

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993).

Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court must rely on other evidence, such as: observations of the testator’s behavior reported by neighbors and friends; medical evidence during the time of the will signing and the content of the will itself, just to name a few. My experience as a probate litigator is that there is invariably a contest of competing evidence of the testator’s capacity-for example, there is usually expert evidence that conflicts with non-expert evidence given by those who knew the testator. Read the rest of this entry

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. Read the rest of this entry