Blogs from January, 2010


The appellate process is often a confusing landmine of rules, procedures, and traps for the unwary.  One of the essential elements for an inheritance lawyer in understanding the appellate review process is the applicable standard of review for particular issues addressed in the court of appeals. 

In Florida, in the context of inheritance law court decisions, the different district courts of appeal are not required to defer to lower tribunals on issues of law.  Stated another way, appellate review of a decision that is based on a legal conclusion involves no more than a determination whether the applicable issue of law was correctly decided in the lower tribunal. This concept is commonly referred to as the de novo review doctrine.

When a Florida appellate court decides an issue from an inheritance or will contest a lawsuit, the court will often review the issue without giving deference to the probate court trial judge.  De novo review simply means the appellate court is free to decide the question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. This de novo standard of review allows the appellate court to view the case with a fresh set of eyes so to speak.

An Example from 2010

This standard of review was employed by the Second District recently in a trust case Burgess v. Prince, 35 Fla.L. Weekly D222a (Fla. 2d DCA January 22, 2010).   The Burgess trial judge ruled that Ms. Burgess, who was the trustee (and beneficiary) of the Prince Family Trust, should be removed as a trustee since, in the trial judge’s view, she had been receiving compensation for managing a trust asset.  The trial judge also ruled that all of the compensation she had received from the trust was to be charged against her distributive share of the Trust. 

The Court of Appeals, applying the de novo review standard, looked to the plain language of the trust document which did provide that a beneficiary could not receive compensation for serving as a trustee. However, the appellate court reviewed the record and found that Ms. Burgess did not receive compensation as a trustee, but rather from operating an ongoing business for the trust.  The language of this trust did allow the trustee to pay for persons who perform services to the trust and to pay reasonable compensation for their services.  Further, the court noted that a trustee was specifically mentioned as one of the persons who could perform those services on behalf of the trust and receive compensation.   Finally, the court noted that the trust instrument allowed the trustee to compensate a beneficiary for business management duties.  Taking all of these provisions and reading them with a fresh set of eyes, and viewing the plain language of the instruments at issue through the de novo standard, the appellate court reversed the trial judge and sent the case back for proceedings consistent with its opinion.

This was an easy case for the Second District Court of Appeals.  Most issues raised on appeal do not present the Court with language as plain as that which appeared in the trust instruments in the Burgess case.  In some cases, courts will construe trust language based on the rules of contract construction, but in all cases involving trust interpretation and issues of law, the appellate court will review using the de novo standard.


Most Recent Posts from January, 2010