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Florida Probate Blog

Category: Estate Litigation

Florida Will Contest

Written by on Mar 22, 2011| Posted in: Estate Litigation

What is a Will Contest? A will contest is a challenge to the Last Will & Testament submitted for probate on behalf of a decedent.  This firm represents both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament. For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. […]

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Probate Litigation

Written by on Mar 14, 2011| Posted in: Estate Litigation

CONVERSION OR CIVIL THEFT? Probate and Trust lawsuits, at times, involve someone holding a power of attorney who oversteps their authority and improperly takes possession of property, assets or money of another.  In this situation, they may have committed conversion and/or civil theft. The Restatement of Torts defines conversion as an intentional exercise of dominion and control over a chattel (property or asset) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.  Under Florida case law, conversion is defined as the wrongful control of another person’s property, assets or money.  Seymour v. Adams, 638 So.2d 1044 (Fla. 5th DCA 1994).  The essence of the tort of conversion is the exercise of wrongful dominion or control over property, assets or money to the detriment of the rights of the actual owner.  Goodwin […]

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Gold Diggers Beware!

Written by on Mar 1, 2011| Posted in: Estate Litigation

Florida enacts legislation allowing challenges to “deathbed marriages.”  It used to be that you could marry someone only moments before death and be vested with all the same rights and benefits as a spouse of 50 years.  Florida wised up to this type of predatory behavior and enacted Florida Statute §732.805, which became effective on October 1, 2010.  The statute allows an interested party to challenge a surviving spouse’s rights by alleging that the marriage was procured by fraud, duress or undue influence.  The burden is on the challenger to establish, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence.  The cause of action cannot be brought until the death of the person believed to have been coerced into marriage and is only available for four (4) years from date of death.  It will be interesting to revisit this blog after causes of action […]

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Battle of Wills

Written by on Dec 6, 2010| Posted in: Estate Litigation

The battle over a Will can be more like a battle of wills. “It’s the principle of the matter” We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially – to achieve a measure of satisfaction and closure through the judicial process.   

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Desperate Times…

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

…call for desperate measures  The Marchman Act:  Emergency help for a drug-addicted family member. Recently I heard of a terrible story involving a promising college student who became addicted to illegal narcotics and dropped out of school.  She began engaging in behavior that was inconsistent with that of her prior twenty years, yet despite her obvious decline her parents were powerless to stop it.  It seems that every time they sought help from the authorities they were reminded that, legally, their daughter was an adult.  If she were in possession of drugs they could arrest her, but there weren’t other options presented.  Meanwhile, her abuse of narcotics eventually led to her death.  Needless to say, her parents were devastated. While I did not know the parents personally, the story bothered me.  Here were two individuals who deeply loved their only child, yet lost her because of her drug addiction and […]

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Are you my lawyer?

Written by on Nov 23, 2010| Posted in: Estate Litigation

DOES AN ATTORNEY WHO REPRESENTS THE PERSONAL REPRESENTATIVE OF AN ESTATE ALSO REPRESENT THE BENEFICIARIES? Pursuant to Florida Statute 733.301, if a person dies with a valid Last Will and Testament in place, the personal representative is usually nominated by the document itself.  In the event the person nominated to be the personal representative of the estate is not able to perform their duties as personal representative, the well-drafted Will would name a successor personal representative.  If that is not the case, then Florida Statute 733.301 provides for the personal representative being selected by a majority in interest of the persons entitled to the estate.  Also, in some instances, the Court may select a person of interest who is best qualified to serve as the personal representative of the estate pursuant to Florida Statute 733.301.

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Florida Elective Estate

Written by on Nov 15, 2010| Posted in: Estate Litigation

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective […]

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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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