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Florida Probate Blog

Category: Probate Litigation

Waiver of Elective Share

Written by on Aug 27, 2019| Posted in: Probate

Waiver of Elective Share in a prenuptial agreement is modifiable only by amending, revoking or abandoning the prenuptial agreement. According to the Fourth District Court of Appeals, waiver of elective share in a prenuptial agreement can only be invalidated by amending, revoking or abandoning the prenuptial agreement, not by executing a will or trust leaving an amount equivalent to the elective share. A husband and wife were married in 2011.  Prior to their marriage, they entered into a prenuptial agreement wherein wife waived her right to an elective share in husband’s estate.  The prenuptial agreement did allow them to make gifts to each other by will or codicil without invalidating the prenuptial agreement, to wit: Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other.  Either of the parties may elect to make a gift to the other by […]

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Contesting a Will in Florida

Written by on Aug 7, 2019| Posted in: Probate Litigation

Contesting a will in Florida can be done in two ways and for the following reasons: Petition to Revoke Probate.  If a will has already been admitted to probate and no deadline prevents a contest, then a petition to revoke probate of the will can be filed to begin a will contest. Objection to Petition for Administration.  If a will has been offered for probate but not admitted to probate by the court, then an objection to the petition for administration can be filed contesting the will.  Undue Influence.  Undue influence is the most common grounds to contest the validity of a will in Florida.  Undue influence is a type of fraud and the general allegation is that the wrongdoer asserted so much influence over the decedent that the will is the product of the wrongdoer’s desires and does not reflect the true desires of the decedent.  For more information about […]

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Lawyer-Client Privilege Does Not Apply to Estate Planning Attorney’s Files in challenge to a Decedent’s Estate Planning Documents

Written by on Mar 28, 2019| Posted in: Estate Litigation

Lawyer-Client Privilege Does Not Apply to Estate Planning Attorney’s Files in challenge to a Decedent’s Estate Planning Documents In general, an attorney’s file is protected by the evidentiary lawyer-client privilege; however, in the contest of estate litigation – will contests and trust contests – an estate planning lawyer’s file is not protected by the privilege and is subject to being produced in litigation discovery. Vasallo v. Bean, 208 So.3d 188 (Fla. 3d DCA 2016) Plaintiffs in probate and trust litigation cases are frequently forced to spend considerable time and money compelling the decedent’s estate planning attorney to produce his or her file and to answer questions at depositions.  Sometimes the objections and motions for protective order come from the defendant.  This is common when the defendant, who is the alleged undue influencer, is also the decedent’s personal representative and attempts to assert the decedent’s lawyer-client privilege to conceal his or […]

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Florida Will Execution: Strict Compliance with Statute Required

Written by on Mar 26, 2019| Posted in: Estate Litigation

A Florida will execution must follow certain formalities as set forth in the Florida Probate Code.   Bitetzakis v. Bitetzakis, — So.3d —-, 2019 WL 405568, 44 Fla. L. Weekly D343. George Bitetzakis died in January 2017.  His grandson was appointed personal representative and petitioned to admit George’s September 2013 Last Will & Testament to probate.  George’s daughter, Alice, objected to the Will alleging it had not been executed in compliance with the statutory formalities set forth in Florida Statute §732.502.  Specifically, Alice alleged that George had not signed the Will within the meaning of the statute. The trial court conducted an evidentiary hearing, during which the following was established through testimony: George, his wife, his friend and his pastor met each week in George’s kitchen for breakfast.  (Sounds like the beginning of a joke, but the punchline in this case is nothing to laugh at.)  On September 26, 2013, George […]

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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, 257 So.3d 1044 (Fla. 4th DCA 2018), 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 […]

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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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