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: Probate Litigation

Testamentary Capacity: Do We Need Legal Reform?

Written by on Nov 11, 2008| Posted in: Estate Litigation

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court […]

read more

Settlement Agreements and Mediation in Probate

Written by on Nov 5, 2008| Posted in: Probate Litigation

Third District Court of Appeals Upholds Terms of Settlement Agreement Between BeneficiariesThe sanctity of the signed settlement agreement was confirmed on October 29, 2008 when the Third District issued its opinion in Charles Brindle v. Richard W. Brindle, –So.2d–, 2008 WL 4722746; 33 Fla.L.Weekly D2528a (Fla.4th DCA October 29, 2008). Brindle originated in the form of two competing orders from the civil and probate benches in Monroe County. The first order adopted and approved a written settlement agreement by which the sons of the decedent, Dorothy Brindle, resolved a will contest among themselves and agreed to a global reallocation and distribution of all of their inheritance given to them under Dorothy’s will. Fast forward two years, when the Personal Representative of Dorothy’s estate (who also signed the settlement agreement) discovered during the course of asset distribution that there were insufficient assets in the estate to pay the expenses. Monroe County […]

read more

Estate of Carpenter

Written by on Oct 24, 2008| Posted in: Probate Litigation

In Re:  Estate of Carpenter – the presumption of undue influence in Florida and the Florida Probate Code. I have written at great length of the various factors I assess when determining whether to accept a case for prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter. When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth […]

read more

Undue Influence: Lawyers Who Name Themselves or Family Members as Beneficiaries of Wills

Written by on Oct 21, 2008| Posted in: Probate Litigation

All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary. Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions (c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related […]

read more

Revocation of Will

Written by on Oct 15, 2008| Posted in: Probate Litigation

A Look at the Requirements of Will Revocation by Physical Act Flush It Down the Toilet! The Law Florida is one of several states that have a strict requirement for revocation of a person’s Will. Florida law allows a person to revoke their will by either written instructions, or by physical act. For revocation by writing, the document must be a subsequent Will, codicil, or other writing executed with the same formalities required for the original Will (signed at the end and witnessed.) See Fla.Stat. §732.505. Florida Statutes section 732.506 sets forth the requirements for revocation by act: “A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.”

read more

Do I Have a Case? The Presumption of Undue Influence?

Written by on Oct 14, 2008| Posted in: Estate Litigation

Do I Have a Case? (Part Four) As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence, which 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). In Florida, the legislature has created a presumption of undue influence.  What does this mean?

read more

Probate Attorney’s Fee Petitions

Written by on Oct 9, 2008| Posted in: Probate Litigation

Fourth District Opinion Suggests Attorney Fee Petitions Are Subject to De Novo Review: An examination of Section 733.106 fee petitions and Duncombe v. Adderly, –So.2d–, 2008 WL 4489234, 33 Fla.L. Weekly D2367a (4th DCA October 8, 2008). The Law The Florida Probate Code provides, at Fla.Stat. §733.106(3), that “any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” Thus, an attorney who has rendered services to an estate may apply for an award of attorney’s fees. The petition for fees is then reviewed by the probate court, and after hearing, either approved, denied or modified by the probate court.

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

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