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Florida Probate Blog

Category: Probate Litigation

Probate:  Enforcement of Prenuptial Agreement

Written by on Dec 3, 2018| Posted in: Probate Litigation

In the recently-decided Kellar v. Estate of John W. Kellar, 43 Fla.L.Weekly D2381a, the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim. In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, wife filed a petition seeking to admit the will favoring her and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  Wife challenged son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of his will favoring the […]

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Bank Accounts: ownership intent trumps legal form of ownership

Written by on Sep 4, 2018| Posted in: Probate Litigation

Lorraine Kowalski and her husband, Leon, were legally married but separated for approximately sixteen years when Leon died in 2015.  At the time of his death, Leon was living with his long-time, live-in girlfriend, to whom he devised the majority of his estate in a Last Will and Testament.  Lorraine sought an elective share of the estate.  During the probate proceedings, a special master was appointed to determine certain issues, among them Leon’s interest in a bank account in Lorraine’s sole name.  The special master found that Leon owned 50% of the account and that Leon’s share should be distributed to Leon’s estate.  The trial court confirmed the special master’s report and Lorraine appealed.  The appellate court affirmed. In 2006, Lorraine and Leon sold their business and received $3,445,066 which Lorraine held in an account in her sole name.  Over the years, Leon would ask Lorraine for money when he […]

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Florida Probate Nonclaim Statute Does Not Apply to Beneficiaries

Written by on Sep 1, 2018| Posted in: Probate Litigation

HEIRS ASSERT CLAIM TO INTESTATE SHARE OF ESTATE 45 YEARS AFTER DECEDENT’S DEATH:  FIFTH DISTRICT HOLDS THAT FLORIDA’S 2-YEAR NONCLAIM STATUTE DOES NOT APPLY TO CLAIMS ASSERTING BENEFICIAL INTEREST IN ESTATE Helen Watkins had two daughters, Bernice Wallace and Helen Mansell.  In 1971, Watkins died intestate (without a last will and testament) owning a parcel of real property in St. Augustine, Florida.  Nearly 30 years later, Wallace and Mansell filed a petition for summary administration alleging they were the sole heirs at law.  The property was conveyed to Wallace and Mansell and Mansell sold her interest to Wallace.  Another 16 years lapsed and Mansell’s three biological children, who had been legally adopted by Watkins in 1963, filed a petition to re-open summary administration to claim their intestate share of Watkins’s estate.  Wallace objected and asserted, inter alia, that Florida’s nonclaim statute, s. 733.710(1), Fla. Stat., which provides: Limitations on claims […]

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Delayed Discovery Doctrine Applies to Undue Influence Claims

Written by on Jan 12, 2018| Posted in: Probate Litigation

Flanzer v. Kaplan, — So.3d — (2017 Wl 5759041) – Gloria and Louis Flanzer created a philanthropic trust in December 2005. By its terms, the trust became irrevocable at its creation. Louis died in June 2013 and Gloria died in March 2015. In November 2015, Jan Flanzer sued to challenge numerous estate planning documents executed by her parents, including the philanthropic trust.  Jan Flanzer alleged that during a period of time from at least 2001 until her mother’s death, the Trustees maintained a fiduciary relationship with her mother and served as her personal accountant, business and financial advisor, and attorney.  According to the complaint, Gloria Flanzer had diminished mental capacity during this period and was emotionally and mentally susceptible to the undue influence of the Trustees. Jan Flanzer further alleged that the Trustees exploited their confidential relationship with Gloria Flanzer to alienate and ultimately eliminate Jan Flanzer from her mother’s estate plan.  In Count V of Jan Flanzer’s complaint, she alleged that […]

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Attorney-Client Privilege in Probate Litigation

Written by on Nov 18, 2016| Posted in: Probate Litigation

Death, Lawyers, and Loose Lips:  Third District Court of Appeals Clarifies Distinction Between Ethical duty of Confidentiality from Evidentiary Privilege The attorney client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.  For example, see Dennis v. Codrington, 21 Eng.Rep. 53 (1580) (finding “A counselor not to be examined of any matter, wherein he hath been of counsel”).  Thus, it is generally accepted by Florida probate lawyers that the ethical rule of attorney-client confidentiality limits disclosure of information acquired during the scope of the representation.  The only exception is where the client consents to the disclosure.  Rule 4-1.6(a) of the Florida Rules of Professional Conduct articulates the prohibition of disclosure of confidential information: “A lawyer must not reveal information relating to representation of a client…unless the client gives informed consent.”    The sanctity of the […]

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Convicted Felons Cannot Serve as Personal Representative

Written by on May 14, 2016| Posted in: Probate Litigation

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

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Attorney’s Fees in Will Contest

Written by on May 5, 2016| Posted in: Probate Litigation

William Anderson v. Laura McDonough, Personal Representative of the Estate of Helen E. Anderson (41 Fla.L.Weekly D884b), April 15, 2016 In a recent opinion, the Second District Court of Appeals held that the personal representative of an estate was not entitled to a personal judgment for attorney’s fees against an unsuccessful will contestant.  The trial court entered an order awarding the estate $51,897 in attorney’s fees against William Anderson for his unsuccessful challenge to his mother’s Last Will & Testament.  The Second DCA reversed the award because it was unsupported by the law and by the facts of the case.   Anderson and his brothers were excluded from their mother’s will, which left everything to their aunt.  Anderson brought a will contest but the court upheld the will as valid.  The estate then filed a motion for attorney’s fees against Anderson pursuant to Fla. Stat. s. 733.106, which provides that: […]

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Will Substitutes in Florida

Written by on Jan 5, 2016| Posted in: Probate Litigation

THE CONFUSING LAW OF WILL SUBSTITUTES “Many legal doctrines today appear jarringly, carelessly, almost randomly out of harmony with one another.  The chaos has gone largely undetected and hence, has continued to swirl unimpeded.  But it is there to be seen, if we only care to look.  To observe the chaos, one has simply to forsake all instruments of magnification and scan the skies with the naked eye.”             -Adam Hirsch, Professor of Law, Florida State University. Professor Hirsch’s enlightened and succinct summary of the inconsistencies in the law of inheritance is most apparent when viewing the body of law surrounding the issue of Will Substitutes.  The increasing use of Will Substitutes to dispose of property upon death has caused great confusion among both practitioners and lay persons in the State of Florida.  Compounding the confusion problem is the fact that our probate law practice is […]

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Who has standing to assert claim for tortious interference with an expectancy?

Written by on Oct 21, 2015| Posted in: Estate Litigation

TORTIOUS INTERFERENCE WITH AN EXPECTANCY IS AN INTENTIONAL TORT AND THE DISAPPOINTED BENEFICIARY IS THE PERSON WITH STANDING TO BRING THE CLAIM Tortious interference with an expectancy has been a recognized tort theory in Florida since 1966.  Allen v. Leybourne 190 So.2d 825 (Fla. 3d DCA 1966) (“when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action”).    Several years later, the Third District Court of Appeals upheld the following jury instructions in a tortious interference with an expectancy case: The issues for your determination on the claim of the Plaintiff are whether prior to a certain date, Decedent had a formed, fixed intention to give Plaintiff a share of his estate, and, if […]

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DeWitt and the Importance of Adequate Probate Remedies

Written by on Oct 6, 2015| Posted in: Estate Litigation

When is “failure to exhaust probate remedies” properly asserted as an affirmative defense to a tortious interference with an expectancy action?  The answer is almost never.  (Click here for information about the tort action.) The Dewitt v. Duce, 408_So.2d_216, (Fla. 1981), holding can be paraphrased as follows:  The State of Florida has an interest in the orderly succession of property and therefore prefers that a dispute concerning a decedent’s property be conducted in probate shortly after the decedent’s death rather than in a civil action years later.  Therefore, if you can achieve exactly the same result with a Will contest that you could with a tortious interference law suit, then you must chose the Will contest.  If you do not chose the Will contest, then you will be unable to sue for tortious interference later for one simple reason:  “The probate of a Will in Florida is conclusive of its due […]

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