client portal
  • Legal Leaders logo
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Category: Estate Litigation

Missing Last Will & Testament: Lost or Revoked?

Written by on Oct 10, 2008| Posted in: Estate Litigation

Lost Will: Evidence Has To Be Sufficient to Overcome Presumption that Will Was Revoked When It Cannot Be Located After Death. On October 1, 2008, The Florida Fourth District Court of Appeals reversed a Broward County Probate Court ruling in Balboni vs. LaRocque 33 Fla.L.Weekly D2314a ( 4th District. Case No. 4D07-3991. October 1, 2008) holding that the evidence presented was legally insufficient to rebut the presumption of intentional revocation.

read more

Do I Have a Case? What Evidence Points to the Conclusion of Undue Influence?

Written by on Oct 8, 2008| Posted in: Estate Litigation

Do I Have a Case?  (Part Three) As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence and then the case develops and follows the facts that are discovered. Undue influence has been defined by Florida courts as conduct amounting to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed. In re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971).

read more

Stipulation of Last Will & Testament and Appointment of Personal Representative

Written by on Oct 7, 2008| Posted in: Estate Litigation

Ouch! Stinging Stipulations: Florida’s First District Court of Appeal reverses trial court’s appointment of personal representative of estate based on strict application of probate statute and the litigants’ own stipulation. As a probate litigation attorney, I frequently stipulate to a variety of things as a matter of professional courtesy and/or for judicial economy and efficiency. However, as the opinion released today by the First district Court of Appeal reminds us, stipulations have implications and consequences that are sometimes visible only to an experienced eye.

read more

What Evidence Points to the Conclusion of Undue Influence?

Written by on Oct 2, 2008| Posted in: Estate Litigation

Do I have a Case? (Part Two) As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence and then the case develops and follows the facts that are discovered. Undue influence has been defined by Florida courts as conduct amounting to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed. In re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971).

read more

Undue Influence Florida

Written by on Sep 26, 2008| Posted in: Estate Litigation

UNDUE INFLUENCE FLORIDA Do I have a Case?  What Evidence Points to the Conclusion of Undue Influence? (Part One) If I had a nickel for each time a potential client or a referring probate administration attorney asked me this question, I’d retire today. The answer, of course, depends upon a careful examination of each individual case, and frequently the successful resolution of a probate dispute hinges upon the discovery of evidence (often medical and financial records) produced after a lawsuit has commenced. Generally, there are certain categories of evidence that I look for in order to prove undue influence and then the case develops and follows the facts that are discovered. Undue influence has been defined by Florida courts as conduct amounting to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed. In re […]

read more

Florida Probate, Paternity and DNA

Written by on Sep 19, 2008| Posted in: Estate Litigation

FLORIDA PROBATE AND PATERNITY Wait! Don’t Throw that Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing? I recently encountered a dispute in the context of a paternity proceeding in a probate estate as to who has the rights to a decedent’s blood samples that were drawn during an autopsy. The answer was critical to the establishment of my client as the decedent’s biological child and important in assessing all the parties’ ultimate rights to the Decedent’s Homestead Property. The Florida Supreme Court has never directly dealt with the issue, which implicates not just the parties involved in the dispute (in my case, the Decedent’s sister, was the Personal Representative and my client was the biological son attempting to establish paternity) but also […]

read more

Trustee’s Duties

Written by on Sep 16, 2008| Posted in: Estate Litigation

TRUSTEE’S DUTIES What is the legal duty of a fiduciary? The answer from Justice Cardozo is still quoted today:  “A trustee is held to something stricter than the morals of the market place.  Not honesty alone, but the punctillo of an honor most sensitive, is then the standard of behavior.” Meinhardt v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928).

read more

Undue Influence: Summary Judgments Are Rare in Cases of Undue Influence

Written by on Sep 16, 2008| Posted in: Estate Litigation

Undue Influence Florida When can you get a summary judgment in Florida when there’s been undue influence? Not often. RBC Ministeries filed a lawsuit to revoke probation of the will of Lewis Simoneau, and Barbara Topkins filed for summary judgment to allow the will to go forward, and won.  RBC Ministeries appealed, arguing that there was undisputed evidence establishing a legal presumption that Barbara Topkins exerted undue influence over Lewis Simoneau, who lacked testamentary capacity.  It was urged that the will was void, and a prior 1977 Will was legal (which named RBC Ministeries, not Barbara Topkins, as its residual beneficiary). Undue influence is the overpersuasion, coercion or force that destroys or hampers the free agency and willpower of the testator.  If a main beneficiary has a confidential relationship with the person who signs the will, and is actively involved in that person finalizing that will, then the law will […]

read more

Florida Joint Tenancy with Right of Survivorship (JTWROS) Bank Account

Written by on Sep 16, 2008| Posted in: Estate Litigation

A Lesson in the Power of a Florida Joint Tenancy with Right of Survivorship (JTWROS) Bank Account Boy meets Girl; Boy puts Girl’s name on his bank accounts; Girl kills Boy: can Girl get the cash? Broward County Circuit Court tells Girl no, Fourth District Court of Appeals reverses, says answer is yes. John Russo and Michelle Julia never married, but their romantic relationship lasted several years.  In June 2005, John opened an account at Bank of America in his own name and less than two weeks later, he added Michelle’s name to that account.  In March 2006, John opened an investment account as well as a bank account with Charles Schwab; six weeks later, John added Michelle to those two accounts, too. On May 19, 2006, Michelle Julia shot and killed John Russo.  Less than one month had passed since her name had been added to the Schwab accounts.

read more

Florida Probate and Child Support: Will Change to Avoid Child Support Obligations of Beneficiary

Written by on Sep 10, 2008| Posted in: Estate Litigation

Deadbeat Dad Can’t Use Last Mom’s Last Minute Will Change to Escape Payment to Ex-Wife: CALIFORNIA COURT USES CONSTRUCTIVE TRUST THEORY TO DEFEAT LAST MINUTE WILL CHANGE BY MOTHER INTENDED TO HELP SON AVOID CHILD SUPPORT LIEN ON HIS INHERITANCE. In an interesting opinion that could have implications in Florida, a California Appellate Court recently used the legal remedy of a constructive trust to allow a testator’s ex-wife to sue her ex-husband and his sister after they allegedly coerced their mother into changing her will just prior to her death, to give to her daughter the share of the estate given to her son in a prior will so that he could avoid child support obligations. In Cabral v. Soares, 69 Cal.Rptr.3d 242 (Ct.App.2007) Tammy Cabral, the Plaintiff, filed a Complaint alleging that as of November 2005 her ex husband James was delinquent in paying court-ordered spousal and child support […]

read more

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Las Olas Square
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301