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August 24, 2012

The Importance of Proving Damages in a Tortious Interference Case

florida-case-law.jpgAt face value, "tortious interference" occurs when someone interferes with some sort of expectation to a level that prompts judicial involvement. It often occurs in a business context, referred to as "tortious interference of business expectations," and typically involves a defendant who has interfered with another party's contract expectations.

A relatively new form of tortious interference has emerged in the realm of family law, dubbed "tortious interference with an expected inheritance," and its name gives away the focus of the claim. Of course, like many tort claims, tortious interference with an expected inheritance involves five elements, each of which must be proven before a plaintiff can recover anything. The five elements are:

  1. The existence of an expectance on the plaintiff's part involving the inheritance,
  2. The defendant's intentional interference with that expectancy,
  3. Involvement of tortious conduct, such as fraud, duress, or undue influence, in the defendant's interference,
  4. Reasonable certainty that but for the defendant's interference the plaintiff's expectancy would have been realized, and
  5. Damages.

It bears repeating that each and every one of these elements must be proven. The court will simply toss out the case if even one element is missing, and this includes damages. It is not enough to simply tell the court that someone has harmed you; you must also prove the amount of the harm with some reasonable certainty. For example, in Saewitz v. Saewitz, two sisters sued their stepmother, accusing her of tortuously interfering with their inheritance.

The sisters were able to show the first four elements. They had a reasonable expectation that they would receive some inheritance from their father, and they could even show that their stepmother deprived them of that. But they did not prove damages. They had three witnesses, none of whom could offer a reasonable estimate on the value of the estate the sisters were to receive at the time of their father's death. In other words, each witness could offer some vague generalization of the value of the estate, but none of them could peg down a more specific value of the estate at the time it was actually due to the sisters.

The court found this insufficient to establish the "reasonable certainty" threshold of the fifth necessary element. Reasonable necessity must be "sufficiently certain for a reviewing court to perform its review obligation," and the generalized testimony of three witnesses did not meet this standard.

You might be wondering how nobody at court was able to figure out the value of the man's estate. Well, the estate was in control of the stepmother, who was unsurprisingly difficult to deal with when her daughters came to sue her. She apparently prevented the sisters from proving their damages by refusing to provide (as required by discovery rules) certain accounting documents that would show the amount of damages.

The sisters of course brought this argument to the court's attention. The court replied, however, that there were other methods by which the sisters could have obtained the documents. Alternatively, the sisters could have called in expert witnesses (instead of laypersons and speculation) who could testify to the value of the estate. The sisters did none of these things, and paid dearly for it.

This is perhaps the most important point to take away from this case: you must be able to prove your damages. Don't rely on someone else to do it. Don't rely on speculation. Proving damages may be difficult. Other parties may not cooperate. Nevertheless, the burden is on the plaintiff to prove them.

As an aside, this case brings up another point that plaintiffs in similar positions must consider; that is, the difficulty that will surely arise when suing a family member. The estate in this case was apparently valued around several million dollars, which may have convinced the sisters that a lasting relationship with their stepmother was not very valuable. But the fact remains that their family is likely seriously shaken by the legal process they just went through. Family members will take sides and things will get ugly. Facing such a scenario is not something a person should go through alone, and a Florida Estate Planning Lawyer can help with any questions you might have.

May 24, 2012

Tort and Probate Law: Tortious Interference and Expected Inheritance

The recent decision of a Florida appellate court has shed some light on a little discussed aspect of tort and probate law in the state of Florida. The Third District Court of Appeals ruled in the case of Saewitz v. Saewitz that to sustain a prima facie case for tortious interference with expected inheritance the plaintiff must prove damages.

In this case, two daughters, Mercedes and Brooke Saewitz claimed that while their father was dying their step-mother Lynn Saewitz manipulated their father and tortuously interfered with their inheritance. At trial, the case was dismissed because the trial judge held that the daughters did not prove the damage element required to make a prima facie case of tortious interference. The elements of the cause of action are as follows:

(1) expectancy by the plaintiff to receive an inheritance;
(2) intentional interference with that expectancy by the defendant;
(3) defendant's interference involves tortious conduct;
(4) reasonable certainty that but for the defendant's tortious interference the plaintiff would have his/her expectancy; and
(5) damages.

Like any tort or crime, all of the elements must be met in order to sustain the claim. If one of the elements is missing, the plaintiff cannot recover. In the Saewitz case the plaintiffs could not determine with any certainty the value of the property that they claim was tortiously interfered with. At trial, three witnesses testified regarding the value of the property, however no one could provide a specific value of the property at the legally recognizable time. Florida requires that the value of the property be measure at the time of conversion. Since no one testified about when the property was actually converted, there is no proper measuring standard.

Because this tort is relatively new in the state of Florida, those who may be going through probate would need a Florida estate planning attorney to assist them if they believe someone has tortiously interfered with their inheritance. If you questions regarding Florida probate law, contact the Apple Law Firm PLLC and speak with a Jacksonville Probate Litigation Attorney today at (904) 685-1200.

Source: "Tortious Interference with Expected Inheritance in Florida," published at BusinessReviewUSA.com.

May 23, 2012

Florida Appellate Court Adds New Requirement for Trust Contestants

The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.

The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant's argued that the plaintiff's complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. "In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will." The probate court agreed with the defendant's and dismissed the probate suit with prejudice.

The Fourth District Court of Appeals reversed the probate court's ruling, even though the language of the appeal suggested that the Court agreed with the defendant's reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.

What is important for probate attorneys is that the Court has imposed a new requirements for when a client is claiming that a trust is legally ineffective. Such a requirement may be overlooked by those pursuing probate claims without the assistance of a Jacksonville estate planning attorney. If you have questions about a Florida Probate, an estate, or about a will or a trust, contact the Apple Law Firm PLLC today at (904) 685-1200.

Source: "Fourth DCA: A Trust Contestant May Need to Challenge the Will, Too [Florida]," by Charles Rubin, published at JDSupra.com.

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March 26, 2012

Family is Unhappy with Bank but is Prohibited from Changing Banks.

Be careful of agreements that you sign with banks. This family is being held hostage by a bank that made the beneficiaries sign an agreement that required all 94 of them to agree prior to moving their money to another bank. The Tompkins family had been customers of Riggs Bank for nearly 50 years when a money-laundering scandal at the Washington lender prompted them to take their business elsewhere (to Chevy Chase Bank)....The family blames Chevy Chase for poor investment returns, among other things. They can\'t move the accounts, now worth $100 million or so, because of a fundamental error they made seven years ago when signing up with Chevy Chase: They failed to read the fine print. In their haste to flee Riggs, which was eventually sold to another bank, the family signed an unusual agreement that prohibits it from pulling the money from Chevy Chase unless all 94 family members who are beneficiaries of the trust agree. Having failed to secure familial unanimity, 10 of the grandchildren are now suing Chevy Chase Trust for the right to pull the funds.
January 4, 2012

Tortious Interference with an Expected Inheritance in Florida

Often before the death, a spouse or someone else in control of assets attempts to rearrange the assets so that it will benefit them and in doing so it can interfere with the desires of the decedent.

In these situations, the prospective beneficiaries who have been damaged have the right to bring a cause of action against the person who manipulated the decedent's assets.

Some examples of this type of activity include cashing out insurance policies, paying bills our of one account but not another, removing funds from one account and transferring them to another in which they are the beneficiary. Selling or disposing of assets that would go to one beneficiary and converting them to cash what is distributed in another manner.

In a recent appeal over this issue it was made clear that it is not enough to have shown that someone engaged in this type of wrongful activity, but also must provide legally admissible evidence of the damage that was caused to the beneficiaries. Failure to show damages, a required element of the claim, subjected the case to a directed verdict and final judgment of dismissal.

If you are considering a claims against someone who has interfered with your expectancy, you should contact a Florida Estate Planning Lawyer who understands the elements of the cause of action as well as the ability to gather and introduce legally admissible evidence.

December 9, 2011

Will Contests: Are Foreign WIlls Valid in Florida?

In Florida a Will must be in writing, signed by the signed by the testator and authenticated by two witnesses. Florida does not recognize holographic wills that are valid in another state if they do not meet the above requirements. Other than holographic wills, Florida will recognize a will that was validly created in another country.

Therefore a foreign will other than a holographic will is valid in Florida and holographic wills created in anther state or country which are signed by the testator and authenticated by two witnesses are also valid in Florida.

There are three ways in which a will can be contested in Florida.


  1. Undue Influence;

  2. Testamentary Capacity;

  3. Failure to Execute with the Required Formalities.


The above example would involve Failure to Execute with the Required Formalities.
Florida Statute 732.502 defines the requirements that a testator must follow to create a valid will. Carefull attention need to be paid to a will that was not executed in Florida, or an old will to make sure that the requirements were followed at the time the will was created and not necessarily the current requirements.

In addition, a foreign will could be challenged under testamentary capacity. To have the proper testamentary capacity to make a will in Florida you must be of sound mind and either an emancipated minor or more than 18 years of age. Sound mind is having the mental ability to understand the making of a will, knowing what your assets are, and being able to choose who is going to receive them. You do not have to understand it later, but only have a lucid moment at the time you execute the document. If there is a question about mental capacity, it is a good idea to ask questions, and document the answers at the time the will is signed to create evidence of mental capacity for any future dispute.

The third type of will contest deals with undue influence. This happens when a beneficiary or another person causes a person to change a will to the detriment of another person. These are very hard cases to prove but do occur. Often a family member, caregiver, friend, or neighbor with access to a person can cause them to change a will with undue influence.

If you are considering contesting a will in Florida, you should discuss your situation with a Florida Estate Planning Lawyer to determine what your options are.

July 5, 2011

Florida Trust Case When Asset Generates No Income

A recent Florida appellate court decision, 2010 WL 4226204, came to the conclusion that if a trust only has a piece of real property as its sole asset and the trust documents provide an intent that the trust give 5% of its annual principal disbursements to the beneficiary, no monies needs to be paid to the beneficiary. However, as a substitute, the court ordered this trust to pay 5% of the interest in the principal asset to the beneficiary. The court ruled that this would be an "equivalent transfer of interest."

What this may mean to you: If you find yourself as the beneficiary of a trust where the sole asset is a house or some other type of real property and you are expecting a disbursement from the trust, you may be entitled to a substitute payment in an interest in the house. On the other hand, if you are a trustee of a trust with no money to make disbursements, you may still have some options depending on the language of the trust. In either case, you should contact a Jacksonville Florida Trust lawyer who can look over the facts of your particular situation, and let you know the possible legal avenues you can pursue. Or, if you are further down the road leading to litigation, you can contact a Florida Trust Litigation attorney who can represent you in court.

February 22, 2011

Estate Planning and Criminal Defense Lawyer

We often do not think of Criminal Defense in connection with Florida estate planning. We have a Jacksonville Criminal Defense Lawyer who has been helpful in dealing with crimes committed by fiduciary agents. Every month we get contacted by individuals who have had their parents or families life savings depleted because someone with a Power of Attorney or other fiduciary position thinks that they can treat the other persons funds as their own. Not only are we able to help represent the individuals who have lost the money, but we often represent other family members that have lost their inheritance because of the bad acts of others.

Often it is a difficult choice to decide whether to just go after recover of the money or to also package the information for the state to review for possible criminal charges. Florida has very strict laws when it comes to financial abuse of the elderly.

If you believe that a Power of Attorney or trustee or other person with a fiduciary responsibility has acted inappropriately, contact a Florida Estate Planning Lawyer or a Jacksonville Criminal Lawyer to discuss your situation. You may also review the Jacksonville Criminal Defense Lawyers Blog or more information on this and other financial crimes.

January 31, 2011

No Florida WIll Contest Can Fix This Problem.

When you have a blended family or children from different marriages it is very important to have estate planning that deals with the various possibilities. All to often the standard will or generic documents can produce undesired results.

Take for example a Husband and Wife who each have children from a prior marriage. Husband and wife each want to support each other in the even they pre-decease each other. The problem is created when the Husband dies first, and leaves everything to the wife. Now the wife dies and leave everything to her children, essentially disinheriting the husband's children.

There are several ways a Florida Estate Planning Lawyer can address these issues and achieve the desired results of the husband and wife.

July 23, 2010

Small Businesses Are Set to Collide With Estate Taxes in 2011

Recently, I have written several blogs concerning the possible federal estate tax increase from zero to 55% in 2011. If Congress's left and right representatives cannot come to an agreement, the exemption will end at $1 million. This means that for every individual who passes away, up to $1 million in assets may pass to their heirs free from estate taxes. While having one million dollars is a significant amount of money, $1 million in assets is something considerably different. Numerous small and family owned businesses that fall into the class above the $1 million limit would be hit hard by the estate tax.

Over the past few years many businesses have been split up and sold to pay the estate taxes. Much of this could have been avoided with proper estate planning. If nothing changes many businesses that are family-owned will most likely have to sell off the business because of a 55% federal estate tax rate. Many states have additional estate taxes that will be due which could raise the total tax to around 70%. Luckily Florida residents will not be subject to additional state estate taxes. For instance, suppose a family owned business has a net worth of $10 million. When the current owner dies the $10 million net worth of the company will pass to the estate and be taxed at 55% + any state estate taxes that may be due. This means that the heirs will have to pay the millions of dollars out of their own pocket or sell off the company. The same rationale is true for farm and ranch owners as well. A one thousand acre farm that has been in a family for many years could be worth millions of dollars. When the current owner dies, the farm will be subject to the same 55% estate tax requiring the heirs to sell off the property to pay the taxes.

With serious tax consequences on the horizon, estate planning has never been more important. The showdown between Republicans and Democrats on Capitol Hill on estate taxation does not show strong signs of reconciliation. If you are a small business owner or farm owner who would like more information on protecting your company contact a Florida Estate Planning Lawyer today. An attorney can help you reach your goal of keeping the business in the family and reducing the taxes through estate planning techniques.

July 19, 2010

Contesting a Will in Florida

will.jpgFlorida Will Contests:

Occasionally a family member or friend passes away with a Florida Will that gives less than expected to an heir of the decedent. This situation usually gives rise to an inquiry about a will contest. A will contest happens when the disgruntled heir challenges the will by suing the estate under some legal theory claiming the will is invalid. Will contests commonly happen when the testator attempts to leave a small amount to an estranged child or a large amount to someone who would not be expected to inherit under a Florida Will.

To guard against the potential of challenges to the will, you may see a No-Contest clause added by the testator. A no-contest clause is a provision of a will that penalizes the beneficiary who challenges the will, or the contestant. While these clauses may be valid in other states, Florida law specifically makes them unenforceable. According to the Florida Probate Code, "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." Furthermore, the Florida Trust Code, as amended in 2007, addresses no-contest provisions by making them unenforceable in any trust instrument. This does not mean that they should not be considered as they may be enforceable if one changes which laws the documents will be interpreted under.

The possibility that an estate could be tied up in Probate court for a long period of time is almost certain when there is a contestant of the will. Your beneficiaries will be prevented from receiving their money and assets for prolonged periods while at the same time the estate funds are being depleted by attorney's fees. If you would like information on ways in which Florida residents can protect their assets from these will contests contact a Florida Estate Planning Lawyer today for guidance.

July 8, 2010

Has Your Florida Trustee Provided an Accounting of the Florida Trust?

With Florida Trust Litigation on the rise, it is important that trustees preform their duties properly.

One of the primary duties of a Florida Trust trustee is to keep accurate records of all acts performed by him in regards to the trust estate. In Florida, trustees have this duty, known as an accounting, which requires providing these records to the trust beneficiaries. The trustee's accounting should be a reasonably understandable report from the date of the last accounting, or from the date on which the trustee became accountable, that adequately discloses the information required.

Fla. Stat. § 736.08135(2) states the requirements of an accounting:

a) The accounting must begin with a statement identifying the trust, the trustee furnishing the accounting, and the time period covered by the accounting.

b) The accounting must show all cash and property transactions and all significant transactions affecting administration during the accounting period, including compensation paid to the trustee and the trustee's agents. Gains and losses realized during the accounting period and all receipts and disbursements must be shown.

c) If feasible, the accounting must identify and value trust assets on hand at the close of the accounting period. For each asset or class of assets reasonably capable of valuation, the accounting shall contain two values, the asset acquisition value and the estimated current value.

Not everyone is entitled to an accounting and while if the grantor is the trustee, the accounting can be waived. There are many other provisions of the Florida Statutes that deal with accountings. If you are a trustee of a Florida trust or a qualified beneficiary of a Florida Trust and want to find out about your rights, you should contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss you options.

June 28, 2010

Funding Your Florida Trust

Creating a Florida Revocable Trust is a job that most Florida Estate Planning Lawyers are capable of but the process of avoiding

Florida Probate

does not end there. Once the

Florida Revocable Trust

has been created it must then be funded with the client's assets. Without proper funding all of the assets that should have been in the trust will pass through

Florida Probate

costing heirs extra money in taxes and fees.



In order to fund your

Florida Revocable Trust

properly, you need to transfer ownership of your assets into the name of the trust. Personal property can be transferred using a document called a General Assignment or Assignment of Personal Effects. Real property is a little more complex because it requires executing a new deed transferring the property from your name as an individual to the name of the trust. Institutions with which you have bank and brokerage accounts usually require a showing that your trust exists and that it is your wish to have these accounts transferred. A Certificate of Trust is a document that provides proof of the existence of your trust and is usually given to the client in the living trust package he receives from his Florida Estate Planning Attorney.



Forgetting or neglecting to fund your trust is something you wouldn't want to do after going to all the trouble to create a trust in the first place. Even if you initially funded the trust with assets there are many cases where people have acquired a significant amount of assets later and never transferred them to the trust. If you would like assistance in creating a revocable living trust or an assessment of your existing trust contact a

Florida Revocable Trust Lawyer

or

Jacksonville Estate Planning Lawyer

today!

June 23, 2010

The Florida Slayer Statute

In Florida, it is a common principle of law that criminals should not profit from their crimes. Therefore, it follows that a murderer should not be able to inherit from the estate of their victim. The most common, but unfortunate event that would trigger a slayer statute would be when a spouse murders the other spouse.

Under the Florida statute, a surviving person who unlawfully and intentionally kills or participates in killing the victim is not entitled to any benefits under the intestacy code or the victim's Florida Will or Florida Revocable Trust. Property that was originally meant for the killer passes as if the killer had predeceased the victim. A final conviction of murder in any degree is conclusive for purposes of this statute but in the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional.

There are many situations where the slayer statute could arise in Florida Probate proceedings of a Florida Estate. None of them are simple and should be dealt with quickly and efficiently. For more information on how to deal with slayer statutes contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer.

June 19, 2010

Removal of a Florida Trustee

Florida Revocable Trust are managed by a Trustee who is the person(s), or in some cases entity, that hold legal title to property for the benefit of an equitable title holder.

Often the grantor of the Florida Revocable Trustselects the trustee who is responsible for making sure the beneficiaries are taken care of according to the grantor's wishes. A single beneficiary or group of beneficiaries can become dissatisfied with the performance of the trustee when unfortunate circumstances occur. This may lead to a difficult court proceeding where the removal of a trustee is sought.

Under the current Florida statute a beneficiary, co-trustee, or the grantor of the trust may request the court to remove a trustee. When a removal request is made, it is up to the court to decide if there are sufficient circumstances that justify the trustee's removal.

The Florida Trust statute expressly states that the court may remove a trustee if:

1) The trustee commits a serious breach of trust,
2) There is a lack of cooperation among multiple trustees,
3) The trustee is unfit, unwilling, or persistently fails to administer the trust effectively, or
4) There has been a substantial change of circumstances or all beneficiaries agree to the removal, the removal of the trustee best serves the interests of all of the beneficiaries, is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available.

If you are the beneficiary, co-trustee, or grantor of a Florida Revocable Trust and believe any of the circumstances mentioned here apply to your trustee, contact a Florida Revocable Trust attorney or Jacksonville Trust Attorney who can discuss whether it would be beneficial to seek the removal and appointment of a new trustee.