Florida Probate Blog

Tittle v. Dahm, October 14, 2020 — So.3d —, 2020 WL 6053264 (Undue Influence Factors) It was refreshing to read the brief and concise Tittle v Dahm opinion recently issued by the Third District Court of Appeals concluding “the factors delineated in In Re Estate of Carpenter, 253 So.2d 697, 702 (Fla. 1971), are not exhaustive, but merely illustrative, designed to “aid trial judges in looking for those warning signals pointing to active procurement of a will by a beneficiary.”  Too often, attorneys and courts conflate the Carpenter factors with the elements of the cause of action for undue influence.   Undue influence must amount to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of free agency and willpower.  Jordan v Noll, 423 So.2d 368 (Fla. 1st DCA 1982).  The Carpenter factors create a presumption of undue influence shifting the burden of […]

The Second District Court of Appeals holds that renting rooms in a home does not destroy Constitutional protection from creditor claims. Anderson v. Letosky, — So.3d — (Fla. 2d DCA 2020), 2020 WL 2745559 Decedent died owning a four-bedroom home.  At the time of his death, three of the bedrooms were rented to tenants and Decedent lived in the fourth bedroom.  Decedent had $38,000 in judgment liens that a creditor was attempting to enforce against his estate.  Decedent’s son filed a petition with the probate court seeking judicial determination that Decedent’s entire home was protected homestead and exempt from creditor claims.  The creditor argued that 75% of the value of the home should not be protected so it could be used to pay the creditor.  The trial court agreed with the creditor.  The appellate court reversed and held that the entire house was protected homestead even though three rooms were […]

COVID-19 LEGAL RESOURCES PAGE The following information is provided to assist members of the Florida legal community and others by providing links to various federal and state websites providing emergency updates, judicial guidelines, economic and technology resources and general information about COVID-19. Official Federal and State Government COVID-19 Information Federal Government Response to Coronavirus, COVID-19.  Links to official information about Government Response to Coronavirus, COVID-19. Florida Executive Orders.  All Executive Orders can be viewed by clicking this link to Florida Executive Orders, which will be updated as additional Orders are issued. Florida Governor’s Office.  The Office of Florida Governor Ron DeSantis has issued a Frequently Asked Questions (FAQ) document to help clarify Executive Order 20-91. Florida Department of Health.  Provides information about on what you need to know now about COVID-19 in Florida. Local and State Government.  Local and state governments have issued “stay-at-home” orders throughout the state urging residents […]

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 […]

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 […]

The Uniform Trust Code §602(c) provides that a settlor may revoke or amend a revocable trust by substantial compliance with a method provided in the terms of the trust or by any method manifesting clear and convincing evidence of the settlor’s intent.   Section 736.0602(3) of the Florida Trust Code is identical to the Uniform Code with respect to the revocation of trusts.  What is Clear and Convincing Evidence?  Florida trust lawyers know that ‘clear and convincing evidence’ is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue. BDO Seidman, LLP v. Banco Espirito Santo International, 38 So.3d 874 (Fla. 3d DCA 2011).  The standard of proof has also been described as an intermediate standard of proof, more than the ‘preponderance of the evidence’ standard used in most civil cases, and less than […]

Over nearly 20 years, my law firm has received hundreds of phone calls asking – How can I fire my Trustee? or How can I remove my Trustee?  In Florida, getting rid of a Trustee is called a trustee removal action where a beneficiary seeks to remove a trustee of a trust, sometimes for reasons other times for no reason.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary.  In fact, a court may remove a trustee on its own. Grounds for removing a trustee include: a serious breach of trust, lack of cooperation among co-trustees substantially impairing the administration of the trust, and unfitness, unwillingness, or persistent failure of the trustee to effectively administer the trust.  The court may determine that removal of the trustee best […]

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It has come to our attention that an individual claiming to be Attorney Adrian Thomas is contacting people around the country about buying and selling time shares.  This is a SCAM.  Do not give this individual any information about you or about your bank accounts.  The man calling leaves a message that he is “Attorney Adrian Thomas” calling about timeshares and leaves the following callback numbers:  321-200-0097, 321-250-6903, 321-250-9121.  Directions are sent to send money to the Dominican Republic via Western Union.   The matter has been reported to the Federal Bureau of Investigation and the Federal Trade Commission.  If you are contacted by someone claiming to be Attorney Adrian Thomas about a timeshare, please provide this office with the information so we can pass it along to the FBI. If you have lost money through this scam, please log on to www.ic3.gov to file a complaint with the FBI. Thank you to those of you who took the […]