Florida Probate Blog

Death, Lawyers, and Loose Lips:  Third District Court of Appeals Clarifies Distinction Between Ethical duty of Confidentiality from Evidentiary Privilege The attorney client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.  For example, see Dennis v. Codrington, 21 Eng.Rep. 53 (1580) (finding “A counselor not to be examined of any matter, wherein he hath been of counsel”).  Thus, it is generally accepted by Florida probate lawyers that the ethical rule of attorney-client confidentiality limits disclosure of information acquired during the scope of the representation.  The only exception is where the client consents to the disclosure.  Rule 4-1.6(a) of the Florida Rules of Professional Conduct articulates the prohibition of disclosure of confidential information: “A lawyer must not reveal information relating to representation of a client…unless the client gives informed consent.”    The sanctity of the […]

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

Fourth DCA overturns Broward Probate Court’s eviction of son from his deceased mother’s apartment. My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead.

State v. Marshall ends after six month trial. “Money is like manure; it’s not worth a thing unless it’s spread around.”—Brooke Astor I have previously written about Meryl Gordon’s recent book Mrs. Astor Regrets: The Hidden Betrayals of a Family Beyond Reproach as an outline of what can happen when wealth meets the dysfunctional family. As readers may know, the late philanthropist Brooke Astor’s probate estate was the subject of litigation and criminal charges in New York. Brook Astor inherited over $60 million when her husband died in 1953. Amazingly, between then and 2003, she changed her last will and testament no less than 38 times. Evidently, Ms. Astor detested her son, Anthony Marshall’s third wife, Charlene, and began making changes to her will at the end of her life to insure that Charlene did not inherit any of the family fortune. Prosecutors charged in an eighteen count indictment that […]

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim. Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for […]

Alabama, Ohio, and 13 Other States Need to Follow Florida’s Lead Many decedents in a variety of jurisdictions place no contest provisions in their wills in order to prevent their family members from fighting over the inheritance following death. These clauses, sometimes referred to as in terrorem clauses are defined by Black’s Law Dictionary as ‘[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.’ For example, I have seen the clauses similar to this in many wills in an effort to avoid will contests: “If any beneficiary under this will in any manner, directly or indirectly, contests or challenges this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner […]

Third District Court of Appeals Opinion Serves as a Reminder to address crucial issues. A candid discussion between counsel regarding settlement and mediation is generally a good idea at some point in any type of litigation, especially will and trust contests and similar probate issues. Since these cases are almost always inter-family case, settlement should be attempted to try to keep the family intact. A good settlement is usually a division of assets that neither side particularly likes, but with which both sides can live. It is generally a good idea to include at least a discussion of these items in any probate settlement agreement: • A mutual release; • Determination of the validity of the will (if it is agreed that the will is invalid, then a prior will must be admitted to probate and the estate fiduciary must be appointed. If the will remains valid, the estate fiduciary […]

Fourth District Court of Appeals Ruling Reminds Practitioners of Need for Rules Clarification By Adrian P. Thomas The appeal of a probate court decision can be tricky. The appellate process is full of land mines, and the probate court appellate procedure is no exception. One of the most common issues that needs to be immediately addressed by the practitioner is to determine whether the appeal is premature. This question can be very challenging in the probate context because the administration of an estate and/or trust is a series of events that can be viewed as both temporal and final at the same time. What Probate Court Orders Can Be Appealed? One of the first rules to learn is that appeals may not be taken from interlocutory orders entered in the probate process. The party who wishes to seek appellate review of an order by the probate court is required to […]

Why The Slayer Rule May Prevent the Slayer’s Estate From Benefiting From the Slayer’s Act By Adrian P. Thomas Nullus Commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) Some readers may be familiar with one of my cases that has been in the headlines recently.  When appropriate, the Florida Slayer Rule can be applied to prevent an injustice and to preclude a killer from benefiting from the crime. Florida, like many other states, has adopted the Uniform Probate Code’s version of the Slayer Rule. See Fla.Stat. §732.802. Unif. Probate Code 2-803 (amended 1993), 8 U.L.A. 211, 211-12. The relevant part of the statute reads:

Fifth District Rules Plain Language Govern Interpretation of Ante-Nuptial Agreement What is a Prenuptial Agreement? A Premarital or prenuptial or antenuptial agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The agreement typically speaks to issues relating to property and can involve virtually any interest or rights in any present or future real or personal property rights. Prenuptial agreements can also allocate rights and risks to the parties’ income and earnings, both active and passive.