Florida Probate Blog

by Adrian Thomas When can a mediated settlement agreement be set aside? The First District Court of Appeal recently decided Pierce v. Pierce (In re Estate of Pierce), 2013 Fla. App. LEXIS 19597, 2013 WL 6438955 (Fla. Dist. Ct. App. 1st Dist. Dec. 10, 2013), which succinctly addressed the issue of when a mediated settlement agreement may be set aside or vacated. Pierce involved a will dispute between two sisters, Linda and Tamra Pierce.  After contentious litigation, the parties went to mediation.  The morning after mediation, Linda had second thoughts about the settlement agreement and sought to set it aside (vacate) it.  The lower court judge held that he could not find that Linda had “freely, knowingly and intelligently entered into the agreement.”  The First DCA reversed, not only because the lower court’s finding was unsupported by competent substantial evidence, but also because the lower court applied the wrong standard.  […]

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence. A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate.

Fourth District Opinion Suggests Attorney Fee Petitions Are Subject to De Novo Review: An examination of Section 733.106 fee petitions and Duncombe v. Adderly, –So.2d–, 2008 WL 4489234, 33 Fla.L. Weekly D2367a (4th DCA October 8, 2008). The Law The Florida Probate Code provides, at Fla.Stat. §733.106(3), that “any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” Thus, an attorney who has rendered services to an estate may apply for an award of attorney’s fees. The petition for fees is then reviewed by the probate court, and after hearing, either approved, denied or modified by the probate court.