Florida Probate Blog

Disinherited children are “interested persons” who have standing to sue a trustee for breach of trust while their invalidation of trust action is pending. The Fifth District Court of Appeals released the Cruz v. Community Bank opinion holding that disinherited children had standing to sue a trustee for breach of trust while their trust invalidation action was pending.  Under the facts of Cruz, the decedent’s children, Tracy L. Cruz and Gregory W. Cates, brought an action seeking to invalidate their father’s 2016 trust, which essentially disinherited them in favor of charities, on the grounds that their father lacked capacity at the time he created the trust.  While the trust contest was pending, the trustee of the decedent’s trust, served an accounting on Ms. Cruz and Mr. Cates, who in turn filed a breach of trust action alleging mismanagement of the trust assets.  The trustee bank moved to dismiss the complaint […]

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 […]

The term “qualified beneficiary” has special significance under the Florida Trust Code.  Status as a “qualified beneficiary” confers rights, including the right to: a complete copy of the trust instrument, the right to an accounting, the right to relevant information about trust assets and liabilities and details about trust administration.  See, Fla.Stat. §§736.0105 (r)-(t), 736.0813.  Accordingly, whether a trust beneficiary is a “qualified beneficiary” is an important issue for both the trustee and for the beneficiary because the status imposes duties on the trustee and confers rights upon the beneficiary. The Fourth DCA recently addressed when a charitable beneficiary has the rights of a qualified beneficiary in Hadassah, The Women’s Zionist Organization of America, Inc. v. Stephen G. Melcer, Trustee, et al, 44 Fla.L.Weekly D207a. Sylvia Gelt created a trust in 1989.  The trust provided that upon her death, a portion of the trust was to be placed in a […]

Discovery of Trust Documents is Relevant in Trust Litigation Cases In a law suit for undue influence seeking the invalidation of a trust, discovery of trust documents executed before the challenged trust are relevant as to whether a person was a beneficiary before the undue influence. Boren v. Rogers, et al, 43 Fla. L. Weekly D274c In 2014, Ann Boren filed a complaint seeking to invalidate two trusts, one executed in 2013 and the other executed in 2014, on the grounds of undue influence.  The allegations in the amended complaint were that Evelyn Rivera befriended the decedent, Elaine Mullins, late in life while the decedent was in failing health and suffering from cognitive deficits and unduly influenced Ms. Mullins to execute the two trust instruments which excluded Ms. Boren from them.  Ms. Boren alleged that but for this undue influence she would have been a beneficiary.  The drafting attorney, Thomas […]

A Trustee’s Duty to Inform and Account Under the Florida Law The essence of the trustee’s existence is to keep a trust’s beneficiaries adequately informed.  Florida probate practitioners, trust lawyers, and estate attorneys all recognize the reality that virtually all fiduciary litigation commences with a beneficiary not receiving a proper trust accounting or explanation of the trustee’s conduct.  The Florida Trust Code provides that a trustee has a duty to keep the “qualified beneficiaries” of an irrevocable trust reasonably informed of the trust and its administration.  Florida law also holds that while a trustee owes no duties to a contingent beneficiary, once the trust becomes irrevocable at the death of the settler, the beneficiary may sue for breach of a duty that the trustee owed to the settlor/beneficiary which was breached during the lifetime of the settlor and subsequently affects the interest of the vested beneficiary.  This general principle was […]

LIMITATIONS ON PROCEEDINGS AGAINST TRUSTEES:  CORYA, WOODWARD AND FLA. STAT. §736.1008 The Florida Trust Code contains a section titled “limitations on proceedings against trustees” that is a limitation of actions and accrual of claims statute specifically applicable to claims for breach of fiduciary duty in the context of trusts.  Specifically, Fla. Stat. §736.1008 provides, in pertinent part, as follows (emphasis and commentary added for clarification): (1) Except as provided in subsection (2), all claims by a beneficiary against a trustee for breach of trust are barred as provided in chapter 95 as to: (a) All matters adequately disclosed in a trust disclosure document issued by the trustee, with the limitations period beginning on the date of receipt of adequate disclosure. NOTE:  (1)(a) provides that IF there is adequate disclosure in a trust disclosure document, THEN the 4-year statute of limitations (“SOL”) in Chapter 95 applies BUT the claim does not accrue until […]

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 […]

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 […]

In a word, yes. In a blow to the unwed in the State of Florida, the Fourth District Court of Appeal recently held that an operating agreement entered into by a deceased business owner (the “Decedent”) trumped his stated testamentary intent to provide his longtime girlfriend with a lifetime payment of $5,000.00 per month, which was to be paid out of distributions from the company the Decedent formed with his sister.  Blechman v. Estate of Blechman, 160 So.3d 152 (Fla. 4th DCA 2015).  Despite the fact that the Decedent in Blechman had amended his trust to “to provide a ‘specific gift’ of his residence and ‘one half of the distributions from [his company], to’ a trustee for the benefit of  the Decedent’s girlfriend,” the Court refused to uphold the trial court’s order, which would have ensured the Decedent’s girlfriend received the $5,000.00 per month gift the Decedent’s estate plan provided. […]

Can a court consider extrinsic evidence when asked to modify a trust under the judicial modification statutes even if the trust instrument is unambiguous?  YES! Historically, common law rules of construction provided that the intent of a settlor of a trust should be ascertained from the “four corners” of the trust and that extrinsic evidence of the settlor’s intent should only be considered if there was an ambiguity in the trust instrument.  The effect of this common law rule was that a trustee or beneficiary seeking to modify the terms of the trust would only be permitted to do so if the court found that the trust, or a portion thereof, was ambiguous.  Absent ambiguity, the court was unable to consider any other evidence of the settlor’s intent and the beneficiaries were stuck with whatever the trust said on its face.  The old analysis changed when Florida adopted the Florida […]