The Duffey Law Firm Blog

Wednesday, October 11, 2017

Does a petition filed under Fla. Stat. 736.1005 require notice to all qualified beneficiaries?

In re Guardianship of Bloom, No. 2D16-2985, 2017 WL 2270124 (Fla. 2nd DCA May 24, 2017), after a lengthy period of litigation involving the guardianship, the estate, and the trust of the decedent, the decedent’s nephew filed for recovery of his attorney’s fees pursuant to Fla. 736.1005. The Second District Court of Appeals noted the ambiguities regarding the notice requirements under the fee recovery statute and clarified that all interested parties must be served with notice of the fee request simultaneously with the filing of the request with the court. 



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Wednesday, October 11, 2017

Can an “estate” be named as a party to a litigation?

In Spradley v. Spradley, 42 Fla. L. Weekly D549 (Fla. 2nd DCA March 8, 2017), a pro se prisoner filed a claim against his mother’s “estate,” claiming that his brothers had converted his property. The Second District Court confirmed that the personal representative, rather than the estate should have been named as the defendant. However, the trial court, rather than dismissing the claim entirely, should have allowed the plaintiff to amend his claim.


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Wednesday, October 11, 2017

Is a “reputed spouse” treated as a surviving spouse under Florida law?

In Cohen v. Shushan, 212 So.3d 1113 (Fla. 2nd DCA March 15, 2017), the Second District Court of Appeals held that a reputed spouse (ie. a common law spouse) of an Israeli decedent was not deemed to be a surviving spouse entitled to rights in the decedent’s Florida estate because their relationship in Israel, although having a legally recognized status, was not considered to be a legally recognized marriage in Israel.


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Wednesday, October 11, 2017

Can a health care proxy make non-healthcare related decisions for a principal without having additional authority?

 

In Moen v. Bradenton Council on Aging, LLC, 210 So.3d 213 (Fla. 2nd DCA January 27, 2017), the Second District Court of Appeals held that a daughter did not have the authority as a health care proxy to waive the right to a jury trial and submit to binding arbitration on behalf of her mother because this was not a health care decision.




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Wednesday, October 11, 2017

Can a writ of garnishment be enforced on an account owned by the debtor and a third party, where a majority of the funds in the account were contributed by the third party?

In Stanbro v. McCormick 105 LLC, 213 So.3d 925 (Florida 4th DCA March 8, 2017), a bank account held in the name of the debtor and her boyfriend’s joint revocable trust was not subject to garnishment because the boyfriend was the primary contributor to the account, and the creditor could not meet its burden to show that the debtor was the exclusive owner of the account funds.




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Wednesday, October 11, 2017

Does a contingent beneficiary of a discretionary trust have a right to receive notice of an adoption proceeding?

In Edwards v. Maxwell, 215 So.3d 616 (Fla. 1st DCA March 31, 2017), a beneficiary of three irrevocable trusts moved to set aside his father’s adoption of a child, who became a qualified beneficiary of the trust as a result of the adoption. The First District Court of Appeals held that the original beneficiary was not entitled to notice of the adoption and did not have standing to set aside the adoption because the trusts were to be distributed in the complete discretion of the trustees, and therefore he did not have a direct, financial, and immediate interest in the trusts. 




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Wednesday, October 11, 2017

Can a lender foreclose on an equitable lien on a homestead property to prevent unjust enrichment?

The case of Flinn v. Doty, 214 So.3d 683 (Fla. 4th DCA March 8, 2017) involves a family dispute over real property. The Fourth District Court of Appeals, relying on an argument of “unjust enrichment,” allowed an equitable lien on the decedent’s daughter’s homestead property to the extent that the proceeds from the sale of the decedent’s real property were used to pay expenses related to the daughter’s homestead property. Notably, the court held that it is not necessary to show fraud or egregious conduct in order to foreclose on an equitable lien



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Wednesday, October 11, 2017

Can an estate be liable for damages if a person gets into an accident while driving the decedent’s car prior to the appointment of a personal representative?

In the case of Depriest v. Greeson, 213 So.3d 1022 (1st DCA February 21, 2017), the decedent’s daughter caused an accident using the decedent’s car after the death of the decedent and prior to the appointment of her step-brother as personal representative. The First District Court of appeals held that prior to the appointment of a personal representative, the law does not impose a duty upon the nominated personal representative to act or prevent harm to the estate. However, it is important to keep in mind that the Depriest holding is based upon a unique set of facts. A different timeline could have led to a very different result.


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Wednesday, October 11, 2017

Can improper execution of a trust be validated under Fla. Stat. 736.0415, Florida’s statute permitting reformation?

The decision in Kelly v. Lindenau, 42 Fla. L. Weekly D1133 (Fla. 3d DCA May 17, 2017) is in keeping with Florida’s long-standing tradition of strictly enforcing execution requirements of wills and trusts, notwithstanding the intent of the testator or settlor. In Kelly, the Second District Court of Appeals held that Fla. Stat. 736.0415, Florida’s trust reformation statute, was not an appropriate remedy to correct execution defects of a trust which conveyed real property to the decedent’s beneficiaries upon his death.  This case, like many other cases, emphasizes the importance of a Florida resident having a knowledgeable Florida attorney familiar with the legal requirements of creating a valid will or trust.




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Wednesday, October 11, 2017

Florida 2017 Notable Cases

Can improper execution of a trust be validated under Fla. Stat. 736.0415, Florida’s statute permitting reformation?

The decision in Kelly v. Lindenau, 42 Fla. L. Weekly D1133 (Fla. 3d DCA May 17, 2017) is in keeping with Florida’s long-standing tradition of strictly enforcing execution requirements of wills and trusts, notwithstanding the intent of the testator or settlor. In Kelly, the Second District Court of Appeals held that Fla. Stat. 736.0415, Florida’s trust reformation statute, was not an appropriate remedy to correct execution defects of a trust which conveyed real property to the decedent’s beneficiaries upon his death.  This case, like many other cases, emphasizes the importance of a Florida resident having a knowledgeable Florida attorney familiar with the legal requirements of creating a valid will or trust. 


 


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Tuesday, October 10, 2017

Florida 2016 Notable Cases


SATISFACTION OF NUPTIAL AGREEMENT – CLAIM BY SURVIVING SPOUSE The Northern Trust Company v. Shaw, 196 So.

DECISION –  The Fourth District Court of Appeals held that a prenuptial agreement was satisfied when a decedent’s wife received $480,000 from the decedent’s IRA and testamentary gifts of personal property worth approximately $103,000.


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