Articles Posted in Probate Litigation

Today I received a copy of a recent Florida’s 4th District Court of Appeal dealing with a remainder beneficiary and a the ability to demand an accounting from a revocable trust before the death of a grantor.  John J. Pankauski Sent me a well-written summary of the Case from October 26, 2016 which I have adapted for the purpose of this blog.  The Case ruling stated that a remainder beneficiary of a Florida trust has no right to a trust accounting, when requested post-death, for the time period of the grantor’s life, absent breach of trust allegations.   This was a revocable trust which became irrevocable upon the death of the grantor/settlor.

In  Hilgendorf v. Estate of Coleman, the grantor  or the person who created the trust was alive, competent,  and was acting as her own trustee of her revocable trust. During grantor’s life, she was did not remain the trustee and a successor trustee took over the management of the trust.  It appears that the grantor still continued to direct the actions of the successor trustee and to “run” things.   The grantor never requested an accounting from the successor trustee during her lifetime.  After the grantor passed away, the PR or executor of the decedents estate, who was also a beneficiary, requested an accounting for the time period when the grantor was alive and the when the trust was revocable.

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This year the Florida Probate Rules Committee has a added a few new rules to the Probate Code. Many of these rules are minor amendments to the old rules or clarifications of previously vague language. The biggest change to the code was the addition of a separate rule for Guardian Accounting under 5.696. This means there are now different rules for guardian accountings from the other types of probate accountings.

Below is a summary of the 2016 amendments to the Florida Probate Rules

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The general rule in estate planning is that if something is not in writing it usually will not be legally valid.  For instance, Florida law requires a Will or trust must be in writing to be effective.  However, one question we often receive is if a promise to create a will or trust is enforceable by a court?

The answer is a promise can be enforceable. However, certain conditions would have to occur.  To further explain, the promise would have to meet the formal requirements of a contract.  A contract, whether written or oral, must have three elements to be enforceable.
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The Fourth District Court of Appeals ruled this month that personal representatives of estates are no longer allowed to deduct attorney’s fees from a spouse’s elective share when litigating claims against the spouse’s stake in the inheritance.  This holding of this case means that a spouse’s inheritance may now be much larger due to avoiding attorney’s costly fees.

So what exactly is an elective share in Florida?  An elective share is a term that describes the portion of an estate that the surviving spouse of the deceased may claim through intestate succession or in place of what the spouse was left in the decedent’s will.  Florida passed this law to ensure that no surviving spouse could be left with nothing.  In Florida, a spouse is entitled to an amount equal to 30 percent of the elective estate.

Property that can be included in an elective share includes all property subject to estate administration in any state.  This can include: joint bank accounts, Totten trusts, property held in joint tenancy, revocable trusts, life insurance policies, pensions and retirement plans, and other property passing directly to a surviving spouse.

The Florida District Court of Appeals recently applied a little known doctrine called the Doctrine of Dependent Relative Revocation in the case of In Re Estate of Murphy to save an estate from passing through intestacy.

The owner of the estate was Virginia Murphy.  Mrs. Murphy died in 2006 and was predeceased by her parents and husband.  She also died without any siblings or children.  In the years before she passed, Mrs. Murphy executed a number of wills that were prepared by her longtime attorney Jack S. Carney, including the last will she executed in 1994.  The 1994 will named Mr. Carey as personal representative of Mrs. Murphy’s estate; and it purported to leave the bulk of that estate to Mr. Carey, Gloria DuBois (Mr. Carey’s legal assistant), and George Tornwall (Mrs. Murphy’s accountant, who died the year before Mrs. Murphy passed away).
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One issue that occurs in estate planning is whether or not a charitable pledge can be enforced on a person’s estate after death.  Wealthy individuals often make pledges to their favorite charitable organizations during their lifetime, only to die before fulfilling the pledge.  Executors are then placed in the difficult situation of balancing its duty to ensure the estates assets for the decedents heirs and to pay the money owed by the estate to the charitable organization.   If a court rules the pledge is enforceable, the pledge must be paid out of the estate before the rest of the estate’s assets are distributed to the beneficiaries.

Courts will often find a charitable pledge enforceable when these situations occur:

The pledge is an offer to contract that becomes binding when work obligated by the pledge has begun, or the charity relying on the pledge has otherwise incurred liability.

Donor’s pledge has induced other pledges

The charity’s acceptance of the pledge imparts a promise to apply the funds according to the donor’s wishes, and his pledge is supported by that promise.
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We often receive calls regarding challenging a will or trust document.  In Florida, before you can file a will or trust challenge, the contestant must renounce any benefit he or she receives under the document they are attempting to challenge.

Reunification is an equitable doctrine in Florida.  In 2013 the 2nd DCA heard the case Fintak v. Fintak, 120 So.3d 177.  Generally, under English law as interpreted by American courts  and individual is estopped from contesting the validity of a document that they received and retained a gift from.  The Florida Supreme Court gave 3 reasons for this rule in Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950):

  1. to protect a fiduciary in the event the contested document is held invalid;
  2. to demonstrate sincerity of the contestant; and
  3. to have the property available for disposition at the conclusion of the contest.

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There was a recent appeal by a creditor who claimed they were known or an ascertainable creditor and did not actual  notice to creditors (40 Fla. L. Weekly S517a).  The estate filed a notice in the paper giving creditors 3 months to file a claim. The known creditor missed the 3 month deadline, but filed their claim within the 2 year window provide for in the Florida Statute 733.710.

The question before the court was when a creditor is known or an ascertainable creditor and does not receive written notice, is their claim barred under 733.702(1) of the Florida Statutes which provides for a 90 day deadline or do they get the full two years as provided in section 733.710.  There were several different interpretations of this issue in different courts around Florida so the question we sent to the District Court of Appeal to get an answer.

Here are the facts of the case and how the DCA determined that the 90 day window for filing claims was not effective when the creditor is known or ascertainable. Continue reading

Florida’s 4th District Court of Appeals recently decided the case of what to do with a will that left the murder’s children the victim’s estate. The trial court held the “slayer statute” did not affect the will, and did not find enough evidence of undue influence to invalidate the will, however, the appellate court did not agree.

The husband Ben was murdered in 2009 and the case became famous when his wife Narcy was arrested and convicted of the murder, and the murder of Ben’s mother, shortly after. The court opinion stated she murdered Ben to assure that she and her family would obtain his considerable wealth. Narcy had a daughter by another marriage, and this daughter had two sons. Narcy’s daughter and the two sons were to inherit Ben’s estate if Ben’s mother and Narcy passed away before Ben. Continue reading

In St. Louis County, a jury awarded Barbara Morriss $77 million for mismanaging her family’s trust. The court agreed the bank breached its fiduciary duty, the duty to act in the beneficiary’s best interest, by failing to fully disclose significant financial transactions that allowed the trusts to lose millions of dollars

Barbara Morriss first learned of her trust’s lost assets when her credit card was declined at a local department store in 2011. Her son is a venture capitalist named B. Douglas Morriss, and was recently sentenced to five years in prison for tax evasion in 2013. Through his companies and others, B. Douglas Morriss and partners raised millions before the companies filed for bankruptcy with more than $35 million in debt. Continue reading

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