Blogs from March, 2012


Prepared and Presented by Adrian P. Thomas, LL.M., J.D. Adrian Philip Thomas, P.A. LAS OLAS SQUARE 515 East Las Olas Boulevard, Suite 1050 Fort Lauderdale, FL 33301 954/ 764-7273

    1. Explanation of Rules of Probate Procedure

Florida Statutes section 731.011 of the Florida Probate Code provides that the substantive rights of all persons that vested prior to January 1, 1976, shall be determined as provided in the former probate code, and more importantly provides that the procedures for enforcement of vested substantive rights shall be as provided in the Florida Probate Rules. Florida Probate Rule 5.010 provides that Florida Probate Rules govern the procedure in all probate and guardianship proceedings, and more importantly, provides that the Florida Rules of Civil Procedure apply only as provided therein. The Florida Probate Rules provide a virtual step-by-step process of various proceedings relating to wills, trusts, and other proceedings relating to a decedent’s estate. The Florida Probate Rules designate certain proceedings as “adversary” proceedings. Some of the common adversarial actions in probate court are:

      1. Proceedings to remove a personal representative. Florida Probate Rule 5.025(a).
      2. Proceedings to determine the beneficiaries of the property of the decedent. Florida Statute Section 733.105; Florida Probate Rule 5.025and Florida Probate Rule 2.025(d)(1).
      3. Proceedings to surcharge a personal representative.
      4. Proceedings to remove a guardian.
      5. Proceedings to surcharge a guardian.
      6. Proceedings to probate a lost or destroyed will or a later discovered will.
      7. Proceedings to construe a will.
      8. Proceedings to cancel a device.
      9. Proceedings to partition property for distribution.
      10. Proceedings to determine a pretermitted share.
      11. Proceedings to determine the amount of an elective share and contribution.
      12. Proceedings for revocation of probate of a will.

Florida Probate Rule 5.025 provides that other proceedings may be declared adversarial by service on an interested person by the separate declaration that the proceeding is an adversary. This allows the proceedings to be governed by the Florida Rules of Civil Procedure. Also, under Florida Probate Rule 5.025the Court may determine any proceedings to be adversary at any time. Caution is advised if proceeding without a formal declaration that the proceeding is adversarial, and one which is not specifically enumerated as such. For example, in Interim Healthcare of Northwest Florida, Inc. v. Estate of Mildred M. Reis, 910 So.2d 329 (Fla.4th DCA 2005) a creditor filed a claim against the estate more than 30 days after the expiration of the filing period, and the claim was struck. The creditor moved for rehearing but failed to schedule the hearing. The creditor moved for an order vacating the order striking its claim and the trial court denied the motion. On appeal, the district court stated:

      • “The Florida Probate Rules do not contain a provision for


      • of orders-and, this includes those striking claims as untimely-made final by the lapse of time for appeal. The rules of Civil Procedure no longer apply in probate except as specified in the probate rules.


      • Fla.Prob.R. 5.101. At one time a statute applied the civil rules to adversary proceedings in probate, but that statute was repealed in 2002.


      • Ch.2001-226, § 8, Laws of Fla. Thus, even though rule 1.540 might logically seem to support an attempt to vacate an earlier probate order made final by the lapse of the time for appeal, in this case, that rule has no application.

See In re Estate of Clibbon,

      • 735 So.2d 487 (Fla. 4


      • DCA 1998).”
    1. Declaratory Judgment

Often it is critical to have the court determine the rights and duties of a fiduciary, beneficiary, or an interested person in the context of the administration of a trust or a probate estate. These issues can be brought before the court under Chapter 86. Florida Statute Section 86.011 provides:

      • “The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
        1. Of any immunity, power, privilege, or right; or
        2. Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.”

Florida Statute Section 86.041 provides:

      • “Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect thereto:
        1. To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or
        2. To direct the executor, administrator, or trustee to refrain from doing any particular act in his or her fiduciary capacity; or
        3. To determine any question arising in the administration of the guardianship, estate, or trust, including questions of construction of wills and other writings.
        • For the purpose of this section, a “mentally incompetent” is one who, because of mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other mental incapacities, is incapable of either managing his or her property or caring for himself or herself or both.”

Florida Statute Section 737.201 gives the Court the power to declare certain rights of interested persons regarding the administration of trusts:

      1. “The proceedings that may be maintained under this section are those concerning the administration and distribution of trusts, the declaration of rights, and the determination of any other matters involving trustees and beneficiaries of trusts. These include, but are not limited to, proceedings to:
        1. Appoint or remove a trustee.
        2. Review trustees’ fees and to review and settle interim or final accounts.
        3. Ascertain beneficiaries; determine any question arising in the administration or distribution of any trust, including questions of construction of trust instruments; instruct trustees; and determine the existence or nonexistence of any immunity, power, privilege, duty, or right.
      2. A proceeding under this section does not result in continuing supervisory proceedings. The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee’s fees and other obligations of trust, acceptance, and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously, consistent with the terms of the trust, free of judicial intervention and without order, approval, or other action of any court, subject to the jurisdiction of the court invoked by interested parties or otherwise exercised as provided by law.”
    1. How to Conduct Discovery

The Deadperson’s Rule, formerly codified at Florida Statute Section 90.602, prohibited the testimony of an interested party concerning oral communications with the testator. After years of criticism and the development of expansive exceptions that confused its application, the Rule was repealed by Laws 2005, c. 2005-46, § 1, eff. July 1, 2005. Most will contests based on undue influence and incapacity are proven through circumstantial evidence gathered during discovery. Florida Probate Rule 5.080 allows basically all of the rules of discovery available under the Florida Rules of Civil Procedure to be employed in probate litigation. This discovery invariably consists of medical records and financial records. When determining which tool of discovery to employ, it is first necessary to identify the target or source of the sought after information. If the source is a party, it is best to begin by issuing written interrogatories, requests for admissions, and requests for production of documents.

      1. Interrogatories. Florida Rule of Civil Procedure 1.340. In complex financial matters, consider asking the Court for permission to serve more than 30 interrogatories. This can be critical in forcing the party to disclose the details of movements of assets, alleged gifts, and the location of assets.
      2. Requests for Admissions. Rule 1.370. This device helps narrow issues. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request.
      3. Requests for Production of Documents. Florida Rule of Civil Procedure. 1.350.
      4. Attorney-client and work product privilege. Raise the objection prior to the deadline for responding so as to not create a waiver argument. Also, don’t allow a party to use overly broad language in a fishing expedition. See, Gabriel v. Northern Trust Bank of Fla., N.A., 890 So. 2d 517 (Fla. 4th DCA 2005)
      • “[T]he overriding touchstone in this area of civil discovery is that an attorney may not be compelled to disclose the mental impressions resulting from his or her investigations, labor, or legal analysis unless the product of such investigation itself is reasonably expected or intended to be presented to the court or before a jury at trial. Only at such time as the attorney should reasonably ascertain in good faith that the material may be used or disclosed at trial is he or she expected to reveal it to the opposing party. [citations omitted]. We believe the questions, in this case, are similarly improper in asking counsel to provide documents “relating” to specific allegations of the complaint. In the lengthy definitions of terms preceding the request, Northern Trust defines “relates to” as Pertains to, refers to, contains, concerns, describes, embodies, mentions, constitutes, supports, corroborates, demonstrates, proves, evidence, shows, refutes, disputes, rebuts, controverts or contradicts. The same effort is required of the Gabriels’ attorney in determining what documents fall under Northern Trust’s definition of “relates to” as is required by a determination of relevance, thus possibly indicating counsel’s strategy.”


      • ., at 518.

If discovery is sought from a non-party, such as a financial institution, medical provider, or perhaps the attorney who drafted a challenged testamentary instrument, the information sought may be obtained through depositions and requests for production of documents and things without deposition.

      1. Depositions. Governed by Florida Rule of Civil Procedure 1.310
      2. Requests for Production of Documents and Things without deposition. Florida Rule of Civil Procedure 1.351:
        1. Request; Scope. A party may seek inspection and copying of any documents or things within the scope of rule 1.350from a person who is not a party by the issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things.
        2. Procedure. A party desiring production under this rule shall serve notice on every other party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery and 15 days before the subpoena is issued if the service is by mail. The proposed subpoena shall be attached to the notice and shall state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; shall include a designation of the items to be produced; and shall state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things. A copy of the notice and the proposed subpoena shall not be furnished to the person upon whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced under this rule and relief may be obtained pursuant to rule 1.310.
        3. Subpoena. If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production shall deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk shall issue the subpoena and deliver it to the party desiring-production. The subpoena shall be identical to the copy attached to the notice and shall specify that no testimony may be taken and shall require the only production of the documents or things specified in it. The subpoena may give the recipient an option to deliver or mail legible copies of the documents or things to the party serving the subpoena. The person upon whom the subpoena is served may condition the preparation of copies on the payment in advance of the reasonable costs of preparing the copies. The subpoena shall require production only in the county of the residence of the custodian or other person in possession of the documents or things or in the county where the documents or things are located or where the custodian or person in possession usually conducts business. If the person upon whom the subpoena is served objects at any time before the production of the documents or things, the documents or things shall not be produced under this rule, and relief may be obtained pursuant to rule 1.310.
        4. No Hearing. There shall be no hearing on any objection to production under this rule. Relief may be obtained pursuant to rule 1.310.
        5. Copies Furnished. If the subpoena is complied with by delivery or mailing of copies as provided in subdivision(c), the party receiving the copies shall furnish a legible copy of each item furnished to any other party who requests it upon the payment of the reasonable cost of preparing the copies.
        6. Independent Action. This rule does not affect the right of any party to bring an independent action for the production of documents and things or permission to enter upon land.

Importantly, note that if a party objects to a notice of intent to serve a subpoena, there is no hearing on the objection. You must schedule the deposition of the records custodian of the entity from whom the records are sought, and judicial resolution of any objection is done through the filing and hearing of a motion for a protective order. There are often issues relating to attorney-client privilege in connection with communications a decedent had with a drafting attorney or with another person. Under Fla. Stat. 90.502the personal representative or his or her attorney may claim the privilege on the dead person’s behalf. If the Personal Representative will not waive the privilege seek judicial intervention. Also, Even without the waiver, there might be no privilege applicable because:

      1. The communication is relevant to an issue between the parties who claim through the same deceased client (Fla. Stat. 90.502(4)(b); and
      2. The communication is relevant to issues concerning the intention or competence of the former client-decedent, executing an attested document to which the attorney was the drafter and/or attesting witness. (Fla. Stat. 90.502(4)(d).

When seeking medical records, there are often concerns relating to whether or not the requesting party has complied with HIPPA requirements. The following language on subpoenas has proved useful:

Satisfactory Assurance of Notice Pursuant to the Health Insurance Portability And Accountability Act of 1996

The undersigned hereby certifies that a good faith attempt has been made to notify (plaintiff/patient) in writing by serving written notice of its intent to subpoena health information to (plaintiff/patient) attorney on April 3, 2006. This written notice provided sufficient information about this legal proceeding for the (plaintiff/patient) to raise objections in the appropriate Court within 15 days of the date of the notice of intent. The deadline for the (plaintiff/patient) to object to our subpoena expired on April 18, 2006. The undersigned further certifies that the (plaintiff/patient) has not objected. This certificate is provided in the absence of an executed authorization or court order pursuant to 45 CFR 164.512.

    1. What to Do on Appeal

The first consideration when seeking an appeal of a probate court decision is to determine whether or not the order at issue is a final appealable order, a nonfinal appealable order, or a nonfinal non-appealable order. Florida Probate Rule 5.100 provides that the appeal of final orders and discretionary appellate review of non-final orders are governed by the Florida Rules of Appellate Procedure. Rule 9.110(a)of the Rules of Appellate Procedure provides that appeals may be taken of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Thus, if the order is final, the appellant has 30 days within which to file the appeal of the order, unless the time is tolled by filing a motion for rehearing pursuant to Florida Probate Rule 5.020(d). Rule 9.130(a)allows for the appeal of certain nonfinal orders. These are typically orders relating to venue, jurisdiction, and injunctions. A party may appeal within 30 days of the rendition of these orders, or wait until the final order is entered for purposes of taking an appeal. If the order is a nonfinal non-appealable order, the party should consider filing a petition for certiorari. Florida Rule of Appellate Procedure 9.100sets forth the requirements for the petition, which must be filed within 30 days from the rendition of the challenged order.


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