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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

UNDUE INFLUENCE AND THE BURDEN OF PROOF

Written by on Oct 14, 2013| Posted in: Probate Litigation

A large number of cases that we litigate regard a will or a trust that our client believes should be invalidated on the basis of undue influence.  In order to prove such a case, it must be shown that that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily, but was subject to the will of another (the defendant) when the execution of the document took place.  In re Estate of Starr, 125 Fla. 536 (1936).  Moreover, an important aspect of any case regarding undue influence is the establishment of a presumption of undue influence, which is created by showing that the defendant is a substantial beneficiary under the will or trust, that he/she possessed a confidential relationship (or close relationship) with the testator, and that he/she was active in the procurement of the will or trust.  In re […]

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Removal of Personal Representative

Written by on Oct 2, 2013| Posted in: General

What are the Grounds for the Removal of a Personal Representative? Florida Statute 733. 504 lists the causes for which a personal representative may be removed. Those are: 1)      Adjudication of incompetency or, even without adjudication, physical or mental incapacity rendering the P.R. incapable of discharging his or her duties; 2)      Failure to comply with an Order of the probate court unless the order is superseded on appeal; 3)      Failure to Account for the sale of property or to produce for inspection the estate assets; 4)      Wasting or other maladministration of the estate; 5)      Failure to give bond or security; 6)      Conviction of a felony by an individual personal representative or insolvency of a corporate personal representative; 7)      Revocation of probate of a will that names the personal representative; 8)      Conflicting or adverse interests against the estate; 9)      Removal of domicile from Florida if domicile was a requirement of initial appointment; […]

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Termination or Suspension of Durable Powers of Attorney

Written by on Sep 19, 2013| Posted in: General

Often times we are contacted by clients that inquire as to whether or not a Power of Attorney can be terminated and/or suspended for their elderly loved one who becomes incapacitated.  Typically this issue presents itself when an elderly loved one is requested or coerced to execute a Power of Attorney in favor of another family member during a period of time when their capacity may be compromised.  In some circumstances, the Power of Attorney may validly executed and later abused after elderly loved one’s capacity comes into question.  A valid Power of Attorney is a very valuable tool when properly utilized and likewise can be disastrous if abused.  It is not uncommon for us to receive inquiries from clients who discover that their elderly loved one is being financially exploited by someone abusing a Power of Attorney.  A Power of Attorney is a writing that grants authority to an […]

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Last Will Mistake

Written by on Sep 18, 2013| Posted in: Probate Litigation

I Made a Mistake! Particularly in their later years, people begin addressing how their assets will be distributed amongst their loved-ones.  Whether by creating a trust for the first time or by amending a previous one, people try to make sure that everyone they want to take care after their death is actually provided for in their testamentary documents.  However, what happens if a mistake is found in the trust?  What happens if that mistake is found after the testaor passes away?  Is there any recourse provided by Florida Statutes or in case law that allow for some type of relief in such instances? The Florida legislature codified the reformation of a trust instrument based upon a mistake in 2007 by the passing of Fla. Stat. 736.0415, which reads as follows: Upon application of a settlor or any interested person, the court may reform the terms of the trust, even […]

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Renunciation Rule

Written by on Sep 6, 2013| Posted in: Trust Litigation

What is the “renunciation rule?” Clients are often surprised to learn that if they want to challenge a trust document, they will – with limited exceptions – be required to return to the trust any distribution they have received under the challenged document while the litigation is pending.  This is called the “renunciation rule.”  The Second District Court of Appeals recently released an opinion that discussed at great length the origins and reasons for the renunciation rule.  See Fintak v. Fintak, 38 Fla.L.Weekly D1815 (August 30, 2013).  The renunciation rule originated in English ecclesiastical courts and originally provided that a beneficiary who received a bequest from a will must return the bequest before being permitted to contest the will.  Hamblett v. Hamblett, 6 N.H. 333 (1833).   The American courts interpreted that rule to mean that a beneficiary who receives and keeps a gift under a will or other instrument is estopped […]

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Standing in a Will Contest

Written by on Aug 30, 2013| Posted in: Uncategorized

Who can contest a will in Florida?   This is a common question among potential clients who believe that, due to fraud, duress, undue influence, or lack of capacity, a will being offered for probate is invalid.  In these situations, the reason for the will’s invalidity may be obvious; perhaps the decedent had Alzheimer’s Disease and couldn’t remember his own name on the date he executed and signed the will.  However, when the will document omits or significantly neglects children, spouses, or siblings of the decedent, does that mean those people can automatically file suit?  Who has standing to contest the validity of the will? The Fourth District Court of Appeals has recently filed an opinion which speaks to the issue of standing in will contests and highlights the importance of specifically articulating a petitioner’s right to sue in the initial complaint.  In Gordon v. Kleinman, 38 Fla. L. Weekly […]

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Can trust assets be frozen during litigation?

Written by on Aug 28, 2013| Posted in: Trust Litigation

Frequently when individuals attempt to file a claim attacking the validity of a Trust or Amendment to Trust, they do not have the proper amount of information to determine the Trust value and, more importantly, whether the assets are being depleted. This is obviously a major concern as, regardless of the outcome of the action, should the Trust assets be depleted, the remedy available to the Plaintiff is obviously significantly limited. Therefore, in order to prevent further depletion of the assets, particularly until the facts regarding the assets of the Trust are obtained, an attempt to freeze the assets within the Trust is generally an option to be considered immediately after filing the action. The question arises, under what circumstances will the Court freeze the assets within a Trust pursuant to a movant’s request to do so? A request for the Court to freeze trust assets is a request for […]

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Freezing Assets: Putting a Stop to Ongoing Injury

Written by on Jul 29, 2013| Posted in: Estate Litigation

We speak with clients everyday who worry that estate trust assets are going to waste or being actively misappropriated.  Some cases involve breach of fiduciary duties, while others may involve fraud or undue influence in the inception.  Though the facts and circumstances vary, the concern is the same: irreparable harm is occurring and time is of the essence. In these situations, an injured party can appeal to the courts and invoke one of the most powerful tools available to the judicial system, the injunction.  An injunction is a court order that prohibits a party from doing some act which injures another party.  Injunctions are a function of the court sitting in equity, meaning they address a harm that cannot be adequately addressed by filing a lawsuit and receiving later damages from the offending party.  For example, if a trustee is actively melting down priceless family heirlooms to sell for scrap […]

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Grounds for Florida Will Contest

Written by on Jul 11, 2013| Posted in: Estate Litigation

Many families, upon the death of a loved one, along with dealing with the obvious associated pain, also unfortunately are presented with the situation where they believe that there may have been questionable circumstances involved in the process of the preparation and drafting of the Will. The question arises, are there actually grounds to contest the Will? The first consideration in making this determination is whether the Will was properly executed. IN RE Estate of Blakenship 122 So. 2d 466 (Fla. 1960) declared that the requirements for execution and qualification are governed by statute and F.S. 732.502 sets for the requirements for proper execution. A general roadmap requires scrutiny of, at the very least, some of the following issues: F.S. 732.501 indicates that the testator must be of sound mind and at least 18 years of age or an emancipated minor. The Will must be in writing, signed at the […]

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Florida Trust Lawyer

Written by on Jun 28, 2013| Posted in: Estate Litigation

The Florida Trust Code continues to grow and respond to the suggestions of the Florida Bar and Florida Trust Lawyers. A recent example is the recent enactment of Senate Bill 492 which made a number of changes which were recommended by Florida Trust Lawyers participating in the Florida Real Property, Probate, and Trust Law Section of the Florida Bar. One of the more significant changes of the Florida Trust Code used by Florida Trust Attorneys, which becomes effective October 1, 2013, is the expansion of the long arm jurisdiction of Florida Courts to adjudicate trust disputes. Many Florida Probate lawyers and Florida Trust attorneys remember the lesson from Pennoyer v. Neff, a SCOTUS opinion from 1878 which held that service over a person or property physically within a state confers jurisdiction to that person or property. But what happens when a beneficiary of a Florida trust has a dispute with […]

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