Florida has a number of retirees, and its elder community is large.  As we live longer as a society, there is a great likelihood that we will become incapacitated, or incompetent, before we pass away.  When that happens, documents like powers of attorney, living wills, health care proxies, and other “health care” documents which designate someone to make medical or health care decisions can become very important. When those documents are not present, it may be necessary to have a guardianship.  (Admittedly, even when you do have POAs and health care docs, families “fight” over who will make personal and financial decisions for someone.) 

When there is a lawsuit involving a will, a trust or an estate, you are dealing with a fiduciary, such as a trustee.   In Florida, we have a statute that protects communications between clients and their lawyers:  the attorney client privilege statute.  In the context of a trustee, Florida also has two statutes which address this issue: they say that the attorney client privilege protects communications between a trustee and the trustee’s attorney (in other words, the beneficiaries, whose trust funds are paying for that trustee’s attorney, can’t see or discover those communications.)

Probate and trust attorney John Pankauski testified this past Tuesday for the plainitff in the case of Morrissey v. Siew, which dealt with issues of defamatory statements or postings on the internet.  Pankauski, who built a probate and trust litigation practice in West Palm Beach, testified to the importance of one’s reputation when providing legal services.  He also testified as to the harm that may come to attorneys who are the victims of persons who write or post defamatory statements on the internet.   The jury found for the plaintiff and also awarded punitive damages. Pankauski is also the co-author (with Robert Connor and Larry Steckman) of  three legal articles on punitive damages in Florida, which were published by the Florida Bar.

Should a trustee who sells a trust asset for $10 Million be entitled to a $1,000,000 trustee fee?  No.  Particularly if that fee is not disclosed to the beneficiaries.  A recent Miami case, decided on August 13, 2013, reveals little tolerance for trustees behaving badly. Bad acts: not providing accountings, not properly valuing trust assets, taking inconsistent or contradictory factual positions, failing to disclose a million dollar trustee “fee” to beneficiaries  and improperly paying trust funds to the trustee’s own law firm in the form of attorneys fees.   In Florida, trustees, like most states, are held to high standards. Trustees who fail in their fiduciary duties will be removed and fined, or surcharged, with damages.  No secret fees. No un-disclosed fees. No unreasonable (high) fees.     Advocate hard. Litigate smart.

Suppose that a loved one passes away and they leave you, say, $10,000, under a Florida will or from a Florida trust.   Should you take that $10,000 if you believe that the will or trust is invalid and you want to attack it?  Are you able to take the $10,000 on a Monday, and then, say, on a Tuesday, file a probate lawsuit to declare the will or trust void, saying that it was obtained by undue influence?  In Florida, beneficiaries of a will or a trust should not accept the benefits of a trust or a will prior to then attacking the trust’s or will’s validity. 

To object to a will or a trust as invalid, that is, to attack the validity of a will or a trust in Florida, and have it (them) declared void, one must consider the renunciation rule.  Generally, one cannot also receive a benefit from a will or a trust in Florida, and still attack that will or trust as invalid.  You must renounce it.  The renunciation of that will or trust in Florida may be conditional: such as conditioned on your success in that trust litigation or your probate litigation contest.  However, a recent case, Fintak v. Fintak, decided August 23, 2013 by Florida’s Second District Court of Appeal, suggests that this rule is not applicable when the grantor or creator of the trust, is the one who is trying to set the trust aside.

Beneficiaries of Florida trusts may be able to exercise their rights against a “bad” Florida trustee even when it may appear that the statute of limitations has expired.  Translation:  a beneficiary of a Florida trust may be able to sue a Florida trustee years after the wrong was committed. But these cases are very fact specific and turn on a number of issues. A trustee who engages in a continuing tort, or repeated wrongs, may be liable for those wrongs even after one believes that the statute of limitations has expired.  

In Florida, parties to litigation may be responsible for paying the other side’s attorneys fees.  In the context of attorneys fees in Florida, Florida has so called “fee shifting” statutes.  Florida statute 768.79 says, among other things “…. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand…..” Does this Florida fee shifting statute apply to everyone and every case? 

Florida has its fair share of will contests and trust disputes, where beneficiaries and family members do “battle” over what a trust or will says.   There are two important rules when considering whether to initiate probate litigation, or to file a lawsuit regarding a trust or will. First, a court is going to do its very best to interpret, or construe, a will by trying to learn the intent of the person who created the trust or will.  Courts often say:  “In construing a will, the polestar for the court is the intent of the testator. The testator’s intent is to be measured by the language he selected and used by looking at the entire instrument, not isolated words, clauses or paragraphs….

Everyone seems to know the “buzz words” of “undue influence.”  Few know what it really means.  Generally, a will or a trust in Florida arrives at the courthouse steps with the presumption of validity and correctness, providing it is executed according to the law.  In other words, if it is in writing, signed at the end of the document by the person who made it, has two witnesses, we presume it’s valid.  A will that is procured or obtained by undue influence is invalid, providing that you can prove it in a court of law.  Mere “influence” is not enough.  It’s ok to ask your mom or dad for money.  It’s ok to ask to receive an inheritance in a will or a trust.  There’s no harm in asking, right?