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Tuesday, October 10, 2017

Notable 2015 Florida Cases

REASONABLY ASCERTAINABLE CREDITOR CLAIMS – Jones v. Golden, 176 So. 3d 242 (Fla. October 1, 2015)

Florida’s Supreme Court held that the claims of known or reasonably ascertainable creditors who were not served with notice are timely if filed within two years of the decedent’s death. 

The Supreme Court of Florida recently addressed the issue of whether the claim of a creditor who is not served with a copy of the notice to creditors but whose claim is known or reasonably ascertainable is barred under Fla. Stat. 733.702(1) if not filed within three months after the first publication of the notice to creditors absent an extension, or whether the claim is timely if filed within two years of the decedent’s death under Fla. Stat. 733.710.

The decedent’s estate was opened in June 2007. The notice to creditors was published, as required by Fla. Stat. 733.2121, but neither the decedent’s wife nor her guardian were served directly with notice. In January 2009, less than two years after the decedent’s death, his wife’s guardian filed a statement of claim asserting that his wife was owed money pursuant to a marital settlement agreement executed in 2002. The probate court, relying on Morgenthau v. Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009), and Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012), issued an order striking the guardian’s claim as untimely under Fla. Stat. 733.702 and Fla. Stat. 733.710. On appeal, the Fourth District concluded that the probate court erred in determining that the claim was untimely without first determining whether the decedent’s wife was a known or reasonably ascertainable creditor. The Fourth District recognized that its decision conflicted with the decisions of the First and Second Districts and certified conflict.

On appeal, Florida’s Supreme Court agreed with the Fourth District and held that if a known or reasonably ascertainable creditor is not served with a copy of the notice to creditors, Fla. Stat. 733.702(1) does not govern the timeliness of that creditor’s claim. Instead, the claims of such a creditor are only barred if not filed within the two-year period of repose under Fla. Stat. 733.710. As such, the claim of a reasonably ascertainable creditor who was not served with notice is timely if filed within two years of the decedent’s death and it is not necessary for the creditor to seek an extension of time under Fla. Stat. 733.702(3) because that section applies only to claims that are untimely under Fla. Stat. 733.702.

EXECUTION FORMALITIES – NUNCUPATIVE WILLS – Malleiro v. Mori, 182 So.3d 5 (September 30, 2015)

DECISION - The court held that the testator’s unsigned, notarial will, which was executed in Argentina, was a “nucupative will,” and therefore could not be admitted to probate in Florida.

The testator was born in Argentina, and owned property in Florida at the time of her death. Five years before her death, she executed a will in New York with attestations by three witnesses who subscribed in the presence of each other and the testator. The New York will, which complied with the formalities of Florida law, pertained to the testator’s real and personal property within the United States. Subsequently, four months later, the testator executed a second will in Argentina. The beneficiaries of the Argentinian will were different from the beneficiaries of the New York will. In creating the Argentinian will, the testator orally pronounced her wishes to a notary, who transcribed them, in the presence of three witnesses. Although the Argentinian will was signed and stamped by the notary, it was not signed by the testator or the witnesses. Upon the testator’s death, the second will was admitted to probate in Argentina. The beneficiaries of the New York will petitioned for administration of the New York will in Florida, and the beneficiaries of the Argentinian will objected. Florida law provides that a notorial will may be admitted to probate if the original could have been admitted to probate in Florida. Fla. Stat. 733.205. The Third DCA held that the Argentinian will was a “nuncupative” will, as it was not signed by the testator, and therefore could not be admitted to probate in Florida.


TRANSFER/OWNERSHIP OF PROPERTY - CONTROLLING DOCUMENT – ESTATES – Blechman v. Estate of Blechman, 160 So.3d 152 (Fla. 4th DCA April 1, 2015)

DECISION – The Fourth District held that a decedent’s membership interests in an LLC immediately vested with his children upon his death in accordance with the operating agreement, and therefore was not a part of the probate estate.

The decedent held a fifty percent membership interest in an LLC. The operating agreement imposed restrictions upon each member’s ability to convey his or her interest in the LLC and specifically required that membership interests may only be transferred upon attaining the prior written consent of the other members, unless an exception applied. One such exception applied where a member, during life or at death, transferred membership interests outright or in trust for the benefit of any person within the immediate family of the member, including children and issue of any deceased child of the member. The operating agreement further provided that, if a member did not devise his membership interests outright or in trust to a person within the member’s immediate family, then the membership interests shall pass to the member’s then living children and the issue of any deceased child, per stirpes. The decedent’s will contained no provision pertaining to his fifty percent membership interest in the LLC. However, the decedent’s trust, provided for a specific gift of one-half of the distributions of the LLC to his girlfriend. Ultimately, the Fourth District held that the express transfer restrictions of the operating agreement defeated the testamentary disposition of the decedent’s membership interests.


TRUSTS – REFORMATION - Megiel-Rollo v. Megiel, 162 So. 3d 1088 (Fla. 2d DCA April 17, 2015)

DECISION – With regard to a revocable trust that did not designate any remainder beneficiaries, the remedy of reformation under Fla. Stat. 736.0415 was available to avoid merger upon settlor's death.


The settlor’s daughter filed an action against her brother and sister, following the death of the settlor seeking a judgement that the trust was void for lack of beneficiaries. The court, relying on Fla. Stat. 736.0415, held that the equitable remedy of trust reformation was not limited to the correction of simple scrivener's errors, and thus a trust without named remainder beneficiaries could be reformed to include the names in accordance with the alleged intent of settlor.


WILL CONTEST – UNDUE INFLUENCE – Blinn v. Carlman, 159 So. 3d 390 (Fla. 4th DCA March 18, 2015)

DECISION – Although rare, a spousal undue influence claim can be proven even if the presumption of undue influence does not arise under Fla. Stat. 733.107.


In 2007 the decedent married his fourth wife at age 81. At that time, the decedent was experiencing severe signs of dementia. In 2008, after a year of marriage, the decedent executed a new will that substantially changed his estate plan in favor of his new wife. His prior will, executed in 2006, left his entire estate to his daughter with his granddaughter as the alternate beneficiary. Shortly after the decedent’s death, his wife admitted the decedent’s 2008 will to probate and the decedent’s two children filed an action to invalidate the will alleging that the will was procured through undue influence by the decedent’s wife. The trial court held that the 2008 was procured by undue influence. On appeal, the Fourth District affirmed, relying upon the fact that, due to his declining mental and physical health, the decedent was highly susceptible to undue influence. The Fourth District also relied upon the circumstances surrounding the execution of the 2008 will, which were deemed “most suspicious” by the court. Lastly, the Fourth District relied upon the wife’s consistent isolation of the decedent from his family. 


Under Florida law, a presumption of undue influence is triggered if the will contestant shows that: (1) there was a confidential relationship between the testator and the will’s proponent; and (2) a there was active procurement of the contested will by the will’s proponent. However, under Florida law, a wife’s confidential relationship with her husband cannot be used against her to prove undue influence, therefore making it impossible to trigger the presumption. However, due to the egregious circumstances in this case, the Fourth District concluded that undue influence occurred without relying on the presumption.


ESTATES – SLAYER STATUTE – Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA July 29, 2015)

DECISION – Florida’s Slayer Statute does not preclude murderer’s family members from inheriting under decedent’s testamentary documents.


The decedent executed a will devising his entire estate to his mother. In the event his mother predeceased him, the entire estate would go to his wife. If neither his mother nor his wife survived him, then his wife’s daughter from a prior marriage would receive a specific gift of cash, and the remainder of his estate would be divided between the daughter’s two children. The decedent’s wife was convicted of the murder of the decedent and the decedent’s mother. The probate court, relying on Florida’s “Slayer Statute,” Fla. Stat. 732.802, the decedent’s wife could not receive any portion of the decedent’s estate and would be treated as having predeceased the decedent. Therefore, the decedent’s step-daughter and step-grandchildren were the sole beneficiaries of the estate. The cousins of the decedent filed a complaint arguing that Florida’s Slayer Statute should be interpreted to prevent the decedent’s stepdaughter and step grandchildren from inheriting under the decedent’s will, and therefore the decedent’s estate should be distributed pursuant to Florida’s intestacy statute. On appeal, the Fourth District confirmed the trial court’s ruling, and held that the language of Florida’s Slayer Statute precluded only the persons who participated in the decedent’s murder from inheriting under the decedent’s will.  

GUARDIANSHIP – ATTORNEY’S FEES AND COSTS - Steiner v. Guardianship of Steiner, 159 So. 3d 253 (Fla. 2d DCA 2015)


DECISION - An allegedly incapacitated person is not required to pay attorney fees and costs, where the petition to determine guardianship and incapacity is brought in good faith, but incapacity is not found and guardianship is not established.

Involuntary guardianship and incapacity proceedings were initiated in good faith by the children for their parents. A court appointed examining committee found that the parents were not incapacitated. The trial court entered orders authorizing the payment of the attorney's fees requested by each of the three court-appointed attorneys and an order. Under Fla. Stat. 744.331(2)(b), which governs procedures to determine incapacity, the court is required to appoint an attorney for any alleged incapacitated person against whom incapacity proceedings are brought, as well as an examining committee commissioned to determine incapacity.  However, Fla. Stat. 744.331(7)(c), provides that “costs and attorney's fees ... may be assessed against the petitioner if the court finds the petition to have been filed in bad faith” [emphasis supplied]. Ultimately, the Second District, held that there is no statutory provision for the payment of fees from an allegedly incapacitated person where guardianship proceedings are initiated in good faith and incapacity is not found. 

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