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Probate Litigation

Written by on Mar 14, 2011| Posted in: Estate Litigation


Probate and Trust lawsuits, at times, involve someone holding a power of attorney who oversteps their authority and improperly takes possession of property, assets or money of another.  In this situation, they may have committed conversion and/or civil theft.

The Restatement of Torts defines conversion as an intentional exercise of dominion and control over a chattel (property or asset) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.  Under Florida case law, conversion is defined as the wrongful control of another person’s property, assets or money.  Seymour v. Adams, 638 So.2d 1044 (Fla. 5th DCA 1994).  The essence of the tort of conversion is the exercise of wrongful dominion or control over property, assets or money to the detriment of the rights of the actual owner.  Goodwin v. Alexatos, 584 So.2d 1007 (Fla.5th DCA 1991).

In a conversion claim, the Plaintiff has the burden of proof to establish, by a preponderance of the evidence:

1)    a specific and identifiable piece of property, asset or money;

2)    an immediate possessory right to the property, asset or money;

3)    an unauthorized act which deprives the Plaintiff of that property, asset or money;

4)    a demand for the return of the property, asset or money;

5)    a refusal to return the property, asset or money.

A conversion claim differs from a claim of civil theft, in that Florida Statute 772.11 entitles the Plaintiff to an award of treble damages plus reasonable attorney’s fees and court costs.  Felonious intent to commit the conversion of the property, asset or money is required to claim civil theft.  Also, the statute requires written notice to the potential Defendant of the claim of civil theft which provides the potential Defendant with a “safe harbor.”  If the claim is then filed under the statute, the Plaintiff is required to establish the elements of the claim by “clear and convincing” evidence, rather than the conversion standard of “preponderance of the evidence.” 

Probate litigation and trust litigation frequently involves conversion and civil theft allegations.  The conduct of the person in possession of the money as well as the probate lawyers experience will help determine whether the lawsuit to be filed is conversion or civil theft.

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