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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

Undue Influence under Florida’s Trust Code

Written by on Sep 25, 2014| Posted in: Trust Litigation

Florida Statute § 736.0406 Effect of fraud, duress, mistake, or undue influence.— If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void. In 2006, the Florida legislature passed into law the new Florida Trust Code. Of the numerous provisions codified into statute under Chapter 736, about 40% were found in prior Florida law, while roughly 60% were based on the Uniform Trust Code, a non-binding, model legal code utilized to form the basis for various state laws throughout the country.  Although comprehensive in scope, Chapter 736 does not purport to address […]

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Florida Trust Termination

Written by on Aug 12, 2014| Posted in: Trust Litigation

People create trusts for a variety of reasons.  Some create them for creditor protection.  Others create them because they are concerned about providing the beneficiaries with large sums of money all at once.  Although these reasons may be valid and appropriate at the time that the trust is created, what happens if that purpose is no longer in existence?  What if there is a substantial change of circumstances that causes the trust to be inconsistent with the settlor’s purposes (i.e. to benefit the beneficiaries)? Fla. Stat. 736.04113 states, in relevant part, as follows: Upon application of a trustee of a trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2) if: The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impractical to fulfill; Because of […]

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Spousal Inheritance after Divorce

Written by on Jul 2, 2014| Posted in: General

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]

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Elective Share for the Surviving Spouse

Written by on Jul 2, 2014| Posted in: Estate Litigation

Can we agree to something else? The law in Florida is clear in its intentions to protect a surviving spouse from being disinherited.  Fla. Stat. 732.201-732.2155 specifies the applicable rules for a surviving spouse to claim the elective share, which essentially provides that a spouse is entitled to receive 30% of the decedent’s assets upon his or her demise.  This law effectively prevents a spouse from being completely disinherited. Additionally, “no contest” clauses are provisions in trusts that attempt to prevent or discourage beneficiaries from filing lawsuits relating to a trust by penalizing the beneficiary (typically by causing that beneficiary’s share of the trust to be forfeit).  However, Fla. Stat. 736.1108(1) provides that “no contest” clauses in trusts are unenforceable because they may wrongfully punish a beneficiary who is attempting to remedy the bad acts of another and/or effectuate someone true testamentary intent. However, can the settlor of a trust […]

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Qualified Renunciation

Written by on Jul 1, 2014| Posted in: General

In Florida, one of the pleading requirements for a Will Contest or Trust Contest is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document. The “renunciation rule” is an equitable doctrine in Florida.  Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013).  It was originally established by the English ecclesiastical courts but has been interpreted by American courts to require that one who receives and retains a gift under a will is estopped to contest the validity.  Id.  In Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950), the Florida Supreme Court articulated three reasons for the renunciation rule: (1) to protect a fiduciary in the event the contested document is held invalid; (2) to demonstrate sincerity of the contestant; and (3) to have the property available for disposition at the conclusion of the contest. Interestingly, […]

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Florida No Contest Clause

Written by on Jun 30, 2014| Posted in: General

A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument.  These clauses are sometimes referred to as in terrorem clauses.  Generally, a no contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no contest clauses in both wills and trusts.  Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”  Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or […]

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Proving Testator’s Mental Capacity

Written by on Jun 25, 2014| Posted in: Estate Litigation

Florida Statute 732.501 requires, amongst other things, that the testator be “of sound mind” when executing the Will. Testamentary capacity means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty and the practical effect of a will. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. However, competency is generally presumed, and the burden of proving incompetency is on the contestant F.S. 733.107 (10; In Re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972) This is a heavy burden to overcome based on the presumption of competency. It has been stated that “even a lunatic may make a will….in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647, 649 (Fla. 1954) Even the showing of incapacity on other days does […]

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Successor Personal Representative May Sue Attorney for Estate

Written by on Jun 10, 2014| Posted in: Estate Litigation

FLORIDA APPELLATE COURT RULES SUCCESSOR PERSONAL REPRESENTATIVE IS ALLOWED TO SUE A FORMER PERSONAL REPRESENTATIVE’S ATTORNEY FOR MALPRACTICE Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) A lawsuit was filed in Florida alleging the initial personal representative, with her lawyer’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors.  A trial court ruled that a successor personal representative does not have standing to bring a legal malpractice action against the Florida attorney who was hired by the initial personal representative to aid her in the administration of the estate. The appellate court reversed and stated that the powers, duties, and obligations of the personal representative apply not only to the estate, but also to other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and […]

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Oral Agreement to Divide Inheritance

Written by on Jun 10, 2014| Posted in: Estate Litigation

ORAL AGREEMENTS SUFFICIENT UNDER FLORIDA LAW TO DIVIDE INHERITANCE FROM PARENTS Can siblings verbally agree to divide an inheritance prior to their parent’s or grandparent’s death?  The answer in Florida is Yes. In is widely accepted that in order for an agreement between parties to be legally binding and enforceable by a court or judge, at least four elements must be present:  (1) offer; (2) acceptance; (3) specific terms; and (4) consideration.  What is consideration? Consideration is simply a bargained for change in legal position between the parties.    One way to describe how the element of consideration is usually viewed by courts is to look at whether or not the parties making the promises to each other are either doing something that they are not under a legal obligation to do;  or refraining from doing something that they have a legal right to do (i.e., surrender or forebear from asserting […]

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