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Florida Probate Blog

Yearly Archives: 2010


Written by on May 24, 2010| Posted in: General

Who Decides? In the past, Florida Statutes and case law were lacking any real direction as far as who “owns” a deceased person’s body and ultimately who decides how to dispose of the deceased person’s body. Unfortunately, many people do not plan ahead for such an important decision and when one fails to make these arrangements in advance of death, families are left to decide which really means estate litigation lawyers have yet another fight on their hands. The failure to make burial arrangements often creates dissension among loved ones who may never have discussed what a deceased person’s wishes were as far as the disposition of their remains after death. Cremation or burial, where to be buried, whether to donate the body for science, or even what kind of funeral service are just some of the disputes that arise among loved ones. The Anna Nicole Smith and Schiavo cases […]

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Power of Attorney

Written by on May 19, 2010| Posted in: General

How Much Power Does a Power of Attorney Really Give? As probate and trust litigation attorneys, day in and day out, we deal with claims for undue influence, lack of testamentary capacity, and improper execution of testamentary documents.  However, one issue that comes up periodically but often overlooked, is the breach of fiduciary duty by an attorney-in-fact by improperly using a power of attorney.  Often, a power of attorney is used to the detriment of the principal, and by extension the principal’s heirs.  It is standard practice for estate planning lawyers to recommend and prepare a durable power of attorney as part of a client’s estate planning package, as it is important for a mechanism to be in place so the principal’s family can manage his/her financial affairs in the event the principal becomes incapacitated.

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Leader of the Class

Written by on May 11, 2010| Posted in: General

Second District Finds No Authority Under Probate Code for Class Claims The Second District Court of Appeals rendered a harsh rejection of a Lee County Circuit Court’s decision allowing a class action claim against a decedent’s estate.  Baillargeon v. Sewell, 2010 WL 1727892, 35 Fla.L.Weekly D978a, (Fla.2d DCA April 30, 2010) announced a decision important to inheritance lawyers and others interested in Florida probate law and Florida probate and will and estate administration issues.  When Frank D’Alessandro (the Decedent) died, he was one of several defendants named in a class action lawsuit in federal court filed by Randolph Sewell and Daphne Sewell (the Sewells), on behalf of themselves and all others similarly situated, founded upon allegations involving a failed investment scheme.  The Personal Representative was substituted as a party in the pending action after decedent’s death.  Within three months after the first publication of notice to creditors, the Sewells filed […]

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Exploitation of the Edlerly

Written by on May 4, 2010| Posted in: General

CRIMINAL PROSECUTION FOR FINANCIAL EXPLOITATION OF THE ELDERLY – THE SQUEAKY WHEEL GETS THE OIL  “It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”  — Hubert H. Humphrey  It is a sad fact that most people who commit financial exploitation against the elderly get away with it. Often, the exploitation becomes so easy that the exploiter does it more than once and against more than one victim. Their actions become increasingly bolder, and with few exceptions, their greed leads them to steal larger sums of money from each new victim. This is why they must be prosecuted to the full extent, as there WILL be another victim. Unfortunately, […]

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Proper Will Preparation and Execution

Written by on Apr 26, 2010| Posted in: General

It is imperative that a person’s Last Will and Testament be properly prepared by a skilled and competent estate planning attorney and that the execution of this Last Will and Testament is performed appropriately and according to Florida Statutes.   Most recently-drafted Wills are self-proved wills, executed in accordance with Florida Statutes 732.502 and 732.503. Florida Statute 732.502 sets forth the exact execution requirements for a Will to be valid.  These are the formal steps that must be taken to ensure that a Will was validly signed by the testator and the attesting witnesses.  If a Will is executed without a “self-proving affidavit,” then at the time of the decedent’s death, the witnesses to the Will will need to sign oaths in front of a court official to swear that the Will submitted is the Will the testator signed in front of them.  This can present obvious problems if the testator executed […]

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Being of unsound mind…

Written by on Apr 15, 2010| Posted in: Guardianship Litigation

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out! An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian.  Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under […]

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Florida Inheritance Law

Written by on Mar 26, 2010| Posted in: Estate Litigation

Questions regarding Florida Inheritance Law and Florida Inheritance Lawsuits. When Olga Kuhnreich died, she was unmarried and had no children.  She was survived by her niece, Conchita, and Sister Gladys.  Olga’s will named Conchita as the Personal Representative.  Conchita read the last will and testament after Olga’s death and was confused as to who was to inherit Olga’s home.  The confusion was Article Three of the Will, titled “Specific Bequests of Real and/or Personal Property,” concerned two parcels of real estate. First, a West Palm Beach condominium unit was gifted outright to two named beneficiaries. Second, “[f]rom the sale of: 202 N.W. 18 Street[,] Delray Beach, Florida 33444,” the will gifted specific dollar amounts to five persons: Robert Kuhnreich, $5,000; “Lane Abbot, AKA Orlando Abad,” $10,000; “David Mears, AKA David Abad,” $10,000; “Connie Abad, AKA Conchita Abad,” $30,000; and Maria De Cuena, $5,000.  Article Three ended with this sentence: “In […]

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Estate of Carpenter: Undue Influence

Written by on Mar 24, 2010| Posted in: Estate Litigation

Friends, Romans, countrymen, lend me your ears…. How much ear bending is influence verses undue influence? As a law firm that focuses on probate, estate and trust litigation, we encounter all sorts of factual scenarios. In one case where our client was the longtime caregiver/friend of the decedent, a will contest was against the estate planning documents which left the estate substantially to the friend to the exclusion of a son and grandchild. The cause of action contesting the will sounds in undue influence and intentional interference with an expectancy. Throughout the course of the discovery, opposing counsel maintained that the care-giving services provided by our client amounted to overreaching and undue influence. However, as per the Second District Court of Appeal in Florida, the conduct of a person charged with: Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or […]

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Guardianship and Power of Attorney

Written by on Mar 15, 2010| Posted in: General

Many clients request information on the differences between Guardianships and Powers of Attorney.  These are important topics when decisions must be made for a family member who has been deemed incapacitated, can no longer manage their own finances or make their own medical decisions. An ordinary or standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and for example, they break a hip and need extensive rehabilitation, then the principal will not be able to attend to their normal monthly payment of bills or banking transactions.  Also, the principal may plan to take an extended trip or vacation, and may need to have documents executed while they are away.  The ordinary or standard power […]

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Written by on Mar 1, 2010| Posted in: Estate Litigation

DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11 When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult. Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by […]

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