If one seeks to over-turn a will, such as if the maker of the will lacked testamentary capacity, or if the will was the product of undue influence, one must consider other (prior) wills. If one is successful in attacking and also over-turning a will, the question becomes: what about prior wills? Are there valid prior wills, and, if so, are they “revived” or given effect? This depends on who has standing, what has been alleged and the doctrine of dependent relative revocation.
Most litigators insist on having a court reporter present at all court hearings, even the “simple” hearings. This makes sense since the cost is relatively small and it provides a record of what was said by whom, and what transpired. Seasoned litigators will tell you that some hearings end up dealing with issues not even set for that particular hearing: all the more reason to have a transcript. It is not uncommon for court’s orders to be reviewed months or even a year or more later, when memories can fade and issues have been “resolved.” Reviewing court orders, or the interpreting one, may be aided by a hearing transcript which dealt with that order. If a court wishes to read beyond the plain language of its order, they are probably going to start at pertinent hearing transcripts. Have a court reporter with you in court: even for the “agreed” matters and “simple” issues.
At the end of May, 2013, Florida Governor Rick Scott signed a new law which makes certain changes to Florida’s power of attorney statutes, which is contained in Chapter 709 of the Florida Statutes. Among other things, the changes for Florida powers of attorney expand on how third parties (e.g. brokers) may deal with POAs and how attorneys fees may be awarded in disputes involving POAs.
The Florida Supreme Court has recently held that the economic loss rule is limited to cases of products liability. This is a very “big” change from recent and prior law. Determining whether or not a tort claim is permissible when contractual privity exists in situations other than products liability is now a thing of the past. Determining whether a professional services exception is applicable or not is now a thing of the past. For a copy of the Tiara Condo opinion, please email michelle@pankauskilawfirm.com.
When one files a wrongful death case, but is not the personal representative of the estate, courts may permit the duly appointed personal representative to, later, be “substituted in” for the one who filed the suit (the “nominal plaintiff.”) The estate of the decedent is the “real party in interest.” Put another way, the beneficiaries of the estate are also considered the real parties in interest. A recent 3rd District Court of Appeal case discusses this. For a copy of the Eisen case, please email michelle@pankauskilawfirm.com.
May someone other than the duly appointed personal representative of a Florida decedent’s estate file a lawsuit on behalf of the estate or the estate’s beneficiaries? Generally, no. However, if a lawsuit needed to be filed (e.g. to preserve rights or to file before the statute of limitations has “run”) or if one was filed by one without authority, it may be possible to permit the suit to go forward. A recent 3rd District Court of Appeal case suggests that the case may proceed if the duly appointed personal representative is properly substituted for the person who filed the complaint. For a copy of this Eisen opinion, please email michelle@pankauskilawfirm.com
Discovery can be voluminous when litigating matters involving wills, trusts, estates and guardianships. Often, the other side may seek documents which they want you to produce, but which may not be required to be produced. As an example of this is when you have documents which are protected by the attorney-client or work product privilege. Knowing when to file a so called “privilege log” is important . A recent case from the 4th District Court of Appeals in West Palm Beach, Florida spoke to this issue, although it is not a matter involving wills, trusts, estates and guardianships. If you would like a copy of the DLJ Mortgage Capital, Inc. v. Fox opinion, email michelle@pankauskilawfirm.com
A personal representative may have great integrity, and be capable of administering an estate competently and efficiently, and may even be “an excellent attorney”…… but nonetheless should not serve if he or she has a conflict of interest and cannot administer the estate in the interest of all the beneficiaries. For more on this, email michelle@pankauskilawfirm.com.
A personal representative or executor of an estate may be removed from that fiduciary position if he or she is “unsuitable.” The 2nd District Court of Appeal of Florida recently discussed this concept in Long v Long, which was issued on April 26, 2013.
A personal representative of an estate, or executor, may be removed if he or she is unsuitable. A recent appellate opinion discussed this issue and a copy is available by emailing michelle@pankauskilawfirm.com.