Blogs from February, 2018



In a lawsuit for undue influence seeking the invalidation of trust, discovery of trust documents executed before the challenged trust is relevant as to whether a person was a beneficiary before the undue influence.

Boren v. Rogers, et al, 43 Fla. L. Weekly D274c

In 2014, Ann Boren filed a complaint seeking to invalidate two trusts, one executed in 2013 and the other executed in 2014, on the grounds of undue influence.  The allegations in the amended complaint were that Evelyn Rivera befriended the decedent, Elaine Mullins, late in life while the decedent was in failing health and suffering from cognitive deficits and unduly influenced Ms. Mullins to execute the two trust instruments which excluded Ms. Boren from them.  Ms. Boren alleged that but for this undue influence, she would have been a beneficiary.  The drafting attorney, Thomas Rogers, was also the named trustee of both the 2013 and the 2014 trusts.  In defending the lawsuit, Mr. Rogers argued that Ms. Boren lacked standing to challenge the trusts “because the trust was initially created in 1992 and ‘was amended and/or restated in 1996, 2000, 2002, 2005, 2007, 2013 and 2014.”  Mr. Rogers asserted that Ms. Boren must first show that she would have been a beneficiary under an earlier trust before she would be entitled to receive a copy of the most recent trust documents.  

Accordingly, Ms. Boren’s attorney’s served a request for production of documents to Mr. Rogers for copies of all trust documents.  The request also sought communications between Mr. Rogers and the alleged undue influencer, Ms. Rivera.  Mr. Rogers moved for a protective order claiming, among other things, that the requested documents are irrelevant and that he should not have to produce them because Ms. Boren did not identify the specific trust of which she claimed to be a beneficiary.  The trial court conducted a hearing and directed Mr. Rogers to produce trust instruments for in camera review.  Thereafter, the lower court entered an order finding that Ms. Boren was not entitled to review any of the documents sought in the request for production and granted the motion for a protective order in its entirety.

Ms. Boren’s attorneys filed a petition for writ of certiorari with the Fifth District Court of Appeals seeking reversal of the order denying discovery.  As noted by the Fifth DCA, while orders denying discovery are generally not reviewable by extraordinary writ, in rare circumstances when the discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying discovery effectively eviscerates a party’s claim, defense or counterclaim, relief by writ of certiorari is appropriate.  Giancalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009).

The Fifth District Court of Appeals quashed the lower court order.  In doing so, it reasoned that Ms. Boren would need the trust documents at trial to establish that she has stood as a prior beneficiary in the trust to bring this suit and that, with no access to the documents, Ms. Boren lacks the ability to explain or demonstrate how trust documents would have established standing.  In other words, Mr. Rogers cannot assert the defense that Ms. Boren lacks standing and then refuse to produce the documents that would help her prove that she does have standing.  Accordingly, denial of discovery in this case effectively prevented Ms. Boren from proving her case and constituted a departure from the essential requirements of the law.  The Fifth DCA further directed the lower court to permit the discovery of the requested trust documents.

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