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Florida Probate Blog

Category: Estate Litigation

Interference With an Expectancy in Federal Court?

Written by on Jul 29, 2009| Posted in: Estate Litigation

Marshall v. Marshall opens the doors to federal court for undue influence and probate claims For many years, many probate litigators, myself included, believed that the so-called probate exception to federal jurisdiction served to prevent federal courts from adjudicating any matters that were even slightly related to a probate estate.  This whole notion was turned on its head in 2006 when Justice Ginsberg wrote the majority opinion in Marshall v. Marshall, 547 U.S. 293 (2006).  With the second anniversary of the death of Anna Nicole Smith approaching this fall, I think it is a good time to review the holding of Marshall and also view how lower federal courts have interpreted its holding since 2006. Many people are familiar with the details of the case:  Vickie Lynn Marshall (Vickie), a.k.a. Anna Nicole Smith, was the surviving widow of J. Howard Marshall II (J. Howard), who died without providing for Vickie […]

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Standing in Probate

Written by on May 12, 2009| Posted in: Estate Litigation

Third District Applies General Agency Principals to Issue of Who is Real Party in Interest A quick glance at any court docket these days will reveal that many foreclosure actions are being prosecuted by someone other than the real party in interest. While it is generally acceptable for an authorized agent to bring a lawsuit on behalf of a principal in a civil action, how and to what extent is this rule recognized in the probate arena? Generally, in actions by or against a probate estate, the personal representative of the estate is a necessary and indispensable party. There is a lot of decisional case law in Florida holding that in cases involving claims made by or against an estate, the estate and its survivors are the real parties in interest, and the personal representative is merely a nominal party.

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Does a co-owner of jointly-held property get the mortgage paid if the Will requires payment of debts?

Written by on Apr 2, 2009| Posted in: Estate Litigation

Court rules that a Will’s direction for payment of “all just debts” did not require exoneration of jointly held property. Under the common law doctrine of exoneration, an heir or devisee is generally entitled to have encumbrances upon real estate paid by the estate unless the will directs otherwise. The Florida Probate Code abrogates this common law doctrine and directs that the specific devisee of any encumbered property is entitled to have the encumbrance paid at the expense of the residue of the estate only when the will shows that intent. Fla. Stat. §733.803.

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Redactions Upheld

Written by on Feb 20, 2009| Posted in: Estate Litigation

Fourth District Court of Appeals Issues Order Protecting Documents of Trustee’s Attorneys from Discovery. Generally speaking, when any person hires an attorney, including the trustee of a trust, the written and verbal communications are privileged and confidential. However, litigation frequently tests the limits to this rule of non-disclosure. One of the most formidable weapons used by litigators to crack the seal on the confidentiality is to request documents relating to the communications in the process of discovery. Often, a party will issue a limited waiver of the attorney-client privilege and this waiver is then used (or abused depending on your perspective) to wedge in between the privilege and the forced disclosure of protected documents.

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Indispensible Parties in Trust Lawsuits

Written by on Feb 6, 2009| Posted in: Estate Litigation

Necessary and Indispensable Parties in Trust Lawsuits:  Second District Clarifies Rule in Trust Probate Dispute Who is a Necessary Party? The term “necessary party” has been defined in a variety of ways, but generally most litigators will agree that a “necessary party” is: (1) as a party whose rights and interests are to be affected by a court order; and (2) whose actions with reference to the subject matter of litigation are to be controlled by the court order; or (3) a person without whose joinder as a party an effective court order or judgment cannot be rendered in the plaintiff’s favor; or (4) A person who is materially interested in the subject matter of a suit and who will be directly affected by an adjudication of the controversy. Whatever definition one uses, it is undisputed and well-settled law that if a necessary party hasn’t been named in any kind of […]

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Survivorship Accounts

Written by on Feb 3, 2009| Posted in: Estate Litigation

Does creation of joint accounts with survivorship rights alter the dispositive provisions of a pre-existing last will and testament? The question of whether, and under what circumstances, a joint, Totten, or tentative trust in bank deposits can be revoked, either expressly or impliedly, by a written or oral declaration made by the settlor during his lifetime or by the terms of the settlor’s will is often debated among probate litigators and judges. There are few appellate opinions in Florida providing clear guidance for some scenarios. However, Florida and most other states follow the rule adopted by the Restatement of Trusts 2d §58 comment (c) that a tentative trust is revoked by the depositor’s will, if, by its terms, it indicates explicitly or implicitly that the depositor intended to effect such a revocation. Litsey v. First Federal Sav. & Loan Association 243 So.2d 239 (Fla. DCA 1971) (recognizing rule.)

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What is a Prenuptial Agreement?

Written by on Jan 30, 2009| Posted in: Estate Litigation

First District Upholds Integrity of Contracts in Recent OpinionA prenuptial agreement is a contract entered between partners before marriage, or civil unions in those jurisdictions recognizing those. The contract’s contents typically include provisions for the division of marital assets and spouse support in the event the relationship terminates. Prenuptial agreements usually arise in two very different legal contexts: (1) divorce and (2) probate. In Florida, the rules applying to these two vastly-different courtrooms are exclusive of one another. My experience has been dealing with prenuptial agreements in the probate arena, where the marital relationship has been severed not by divorce, but by the death of one of the spouses.

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De Facto Trustee Doctrine Recognized

Written by on Jan 23, 2009| Posted in: Estate Litigation

Washington joins other states in growing trend The doctrine of de facto trustee is gaining popularity in its recognition by state court’s and trust and estate jurisprudence. A person is a de facto trustee where the person (1) assumed the office of trustee under a color of right or title and (2) exercised the duties of the office. A person assumes the position of trustee under color of right or title where the person asserts “an authority that was derived from an election or appointment, no matter how irregular the election or appointment might be.” A de facto trustee’s good-faith actions are binding on third persons. Because the purported successor trustee in Allen Trust acted as trustee and assumed its office through an appointment it reasonably believed to be effective, it was a de facto trustee and was entitled to compensation for its services. Washington recently joined the growing number […]

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Trust Modification

Written by on Jan 21, 2009| Posted in: Estate Litigation

Extrinsic Evidence Sufficient to Construe Settlor’s Original Intent The new Florida Trust Code recognizes the recent increase in use of long-term trusts, thereby requiring greater flexibility in the restrictive rules that apply concerning when a trust may be terminated or modified other than as provided in the instrument. The governing principal of the trust code is to carry out the settlor’s intent. The power to modify the terms of a trust appears in a variety of sections of the new trust code. For example, a court now has discretion to modify an irrevocable trust because of circumstances not anticipated by the settlor. In exercising its discretion the court is to consider any spendthrift provision but is not precluded from modifying the trust for that reason. Fla.Stat. §736.04113. Also, a court may modify a trust if such action is in the best interest of the beneficiaries. Fla.Stat. §736.04115.

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Pretermitted Children

Written by on Jan 20, 2009| Posted in: Estate Litigation

Evidence Must Be Compelling to Disinherit 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 […]

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