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Florida Probate Blog

Yearly Archives: 2010

Substituted Parties

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

What Happens When a Party Dies During a Lawsuit? One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries.  Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served […]

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Appellate Standards of Review

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

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.

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Pretermitted Children: Evidence Must Be Compelling to Disinherit

Written by on Jan 22, 2010| Posted in: General

What is a Pretermitted Child? A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written.  Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will  Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator […]

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Elder Abuse

Written by on Jan 12, 2010| Posted in: General

The following article is published on the National Committee for the Prevention of Elder Abuse website. Mental Capacity, Consent, and Undue Influence What do these concepts have to do with preventing elder abuse and neglect? Evaluating alleged elder abuse often involves determining what an older person understands or understood in the past. Inducing someone to sign a legal document or give a gift, for example, may constitute abuse if the person does not fully understand the transaction, appreciate the value of what they are giving away, or comprehend the implications of what they are doing. One of the first questions often raised in abuse investigations is “did this person understand what he or she was doing when he gave a gift or transferred property. Was coercion, trickery, or undue influence employed?” All Americans have a Constitutional right to exercise choice about how to live their lives. That extends to refusing […]

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Probate Appeals

Written by on Jan 5, 2010| Posted in: Estate Litigation

The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules: “[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different persons.  An order of the circuit court that determines a right, an obligation or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the […]

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