Blogs from January, 2009


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 the inter-family case, the 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 the lawsuit.

In O’Neill v. Scher, — So.2d —-, 2008 WL 5352183, 34 Fla. L. Weekly D9a, decided on December 24, 2008, the Third District Court of Appeals affirmed the probate court’s enforcement of a settlement agreement entered in the Estate of Benjamin Scher. The case originated when Benjamin Scher, the father of Sandra O’Neill and Richard Scher, died leaving a will naming Scher as the Personal Representative of the probate estate. O’Neill and Scher became embroiled in probate litigation which went to mediation and resulted in the parties and their lawyers signing documents titled “Memorandum of Settlement” and “Exhibit to Memorandum of Settlement.” The Third District in its opinion cited the following pertinent sections of the Settlement Agreement:

“3. Sandra O’Neill hereby releases any present and/or future interest which she may have in and to the following:
a. The Estate of Benjamin Scher opened in Miami-Dade County, Florida, under case number 06-0057 CP (04);
b. The Benjamin Scher Revocable Inter Vivos Trust dated 8/30/01, as amended and restated on 8/11/04, and/or any successor trust created through said trust, including but not limited to Marital Trust, Credit Shelter Trust, and Trust for the Benefit of Cassandra O’Neill;
c. Benjamin Scher Irrevocable Trust dated 9/1/99;
d. Any interest claim or expectancy of an inheritance from or against the Estate of Sophie Scher, including but not limited to any testamentary documents executed by Sophie Scher.
e. The Sophie Scher Revocable Inter Vivos Trust dated 8/30/01, as amended and re-stated on 8/9/05.
f. Any interest claim or expectancy of an inheritance from or against the Estate of Richard Scher, including but not limited to any testamentary documents executed by Richard Scher.
4. It is understood that this agreement is a memorial of the terms within the settlement. However, the parties hereby agree to execute formal releases in accordance with the terms set forth herein.”
The litigation in the Miami Dade County probate court (Judge Celeste Muir) centered around O’Neill’s argument that the parties had entered an oral agreement that the settlement was conditioned upon Scher producing documents establishing that their father’s estate was valued at between $6 million and $6.5 million. O’Neill then insisted on an evidentiary hearing to determine if a condition precedent existed and whether it had been satisfied.

After the probate court disagreed with O’Neill, she appealed to the Third District seeking to, inter Ali, set aside the settlement agreement. The appellate court again upheld the sanctity of the settlement agreement:
“Generally, parol evidence is admissible only to clarify the terms of an ambiguous contract [citations omitted] [w]here the contractual language is clear and unambiguous, courts may not indulge in construction or modification and the express terms of the settlement agreement control…Based on our review of the settlement agreement, we find that the agreement’s language is unambiguous, and, therefore, we conclude that the trial court did not err in refusing to conduct an evidentiary hearing in order to consider parol evidence. Accordingly, we affirm the trial court’s order enforcing the settlement agreement.”


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