10 Reasons Why Your Parents Need a Health Care Surrogate

Posted By on November 11, 2014

What is a Florida Health Care Surrogate?

In Florida, a Health Care Surrogate is a person who makes your health care decisions for you when you are not able to make these decisions for yourself. This is someone who will have legal authority to pass on your wishes to your health provider (doctor, hospital, etc.) when you cannot. Often, people like spouses, adult children, parents, brothers or sisters, or sometimes close friends are named as Health Care Surrogates. This is done by executing a legal document, like this online example provided by the Florida Bar.

 

10 Reasons Why Your Parents Need Health Care Surrogates

Children may want to discuss the need for a Health Care Surrogate (”HCS”) with their parents in advance of the need for having one, as part of their parents’ estate planning needs. Why do this? Here are ten reasons from a Florida probate lawyer’s perspective on why your parents need health care surrogates:

1. Parents Can Make Sure That Siblings Aren’t Overwhelmed by Tough Decisions to be Made

In the future, adult children may not be able to figure out what the best interests of their parent may be. These decisions can involve lots of complicated decisions, including if certain types of medication should be used or if surgery should take place. With a Health Care Surrogate in place, the burden of these decisions can be avoided. The HCS may be required to investigate all available options and makes the decision on when it’s best to do things like moving a parent to a care facility.

2. Parents Can Decide Now, Before Disability Choices Must Be Made

There are times when it is obvious to everyone except the parent(s) that changes need to be made for the best interests of Mom or Dad. Particularly for independent parents, it can be hard to face the reality that physical limitations (or mental challenges) warrant the need for care. Having a Health Care Surrogate helps children with a parent who is resisting recognizing new realities.

3. Parents Can Protect Against Emotional Fights Between Children Over Care Issues

Sometimes, children cannot agree on what is best for their parent. Emotions can run high, and there can be fierce fighting among siblings about what is best for Mom or Dad. Having a designated Health Care Surrogate established by the parent beforehand helps the family avoid all this strife.

4. Parents Can Protect Against One Child Controlling the Situation

In some situations, one child may attempt to control the entire situation of how to care for an aging parent, to the exclusion of their brothers and sisters, as well as other family members. This often happens when this child is in the position of caregiver for an elderly parent. Having an advance planning Health Care Surrogate naming more than one child as a HCS could keep the caregiving child from distancing other children from the parent and excluding them from important decisions about health care that may have to be made.

5. Financial Needs of Children for Contributing to Care Can Be Evaluated

Health Care Surrogates can also help in decision making that involves financial considerations. Parents can instruct the HCS in advance how they wish to have finances impact future health care decisions as well as applying for public assistance benefits (i.e. VA benefits or Medicaid).

6. Parents Can Decide How Best to Share Caregiving Among Loved Ones

Health Care Surrogates will be able to help ease the burden on children and family members who are trying to deal emotionally with the decline of their parent by freeing the children to love and comfort and enjoy their remaining time with their parent without the details and stresses of determining their shared health care responsibilities. HCS decisions can be made with the parent’s preferences for how children are to participate in care-taking of the parent, such as whether or not the parent will live in any particular child’s home or if they will stay in their own home with outside home health care support.

7. Surrogate Will Know How to Deal with Potential Situation of One or More Parents All Needing Care from Kids

Children may be facing the decline of more than one parent at the same time. Children may have parents that are both facing serious health issues. Children can face both Mom and Dad having health care needs simultaneously. Having a HCS in place in advance helps ease the burden here on everyone involved.

8. Treatment Choices Can Be Communicated by the Parent In Case They Can’t Do It in the Future

Health Care Surrogates will be able to act with an understanding of what the patient wants to have for medical treatment because they will have instructions in advance from a parent long before the need to address decisions on medical care for a parent incapacitated in some way, e.g. in a coma or with advanced dementia.

9. End of Life Decisions Can Be Clarified By the Parent Now

Health Care Surrogates will be able to act in accordance with the parent’s wishes when the time comes for end of life decisions, such as experimental procedures or removal of a feeding tube for someone deemed to be brain dead by their physicians.

10. If Your Parents Don’t Decide on Surrogate Now, the Court May Decide for Them

Parents who have the foresight to appoint a Health Care Surrogate not only protect their family in the future, they also protect their own desires and preferences for what their future decisions should be. Absent making this appointment, parents may face a Florida probate judge making this appointment for them. This person may be trusted by the judge, but this court-appointed HCS will never have the in-depth understanding of the parent’s wants as someone who was personally appointed first-hand by that parent.

10 Reasons Why New or Expectant Parents Should Have a Will

Posted By on October 14, 2014

Congratulations if you are reading this post because you are expecting a child or if you are a new parent. There are few joys in life as great as raising a child! Congratulations, too, on investigating how to protect your family in the event of an untimely passing on the part of you or your spouse.

Here are 10 reasons why a Last Will and Testament is especially important for new and expectant parents:

1. Guardians.

By doing some estate planning now, you can establish pre-need guardians for your child and family. These are people you trust to be either their financial guardian and/or their guardian of the person. One person can undertake both roles (like a parent does) or different people can act here, splitting up the money decisions from the day to day responsibilities.

2. Unmarried Parents.

Not every child is born to parents with a marriage license. If mom and dad are not married, then having a will set up will protect the baby in the event one of those parents passes away. When parents are not married, without a Florida will, the family home as well as savings, etc., may not pass under Florida law to a live-in partner to care for the child(ren). Florida “intestacy” laws will apply.

3. Step-Children.

In today’s modern families, often there are blending situations where step-parents are doing their estate planning. In a Florida will, these parents can look after the interests of step-children, including appointing guardians for them (see above).

4. Transfer of Property Between the Couple.

Under Florida intestacy laws, if one parents dies, some of their property might not go to their surviving spouse, but directly to their children. This might not be best for the family and preparing a will protects everyone here.

5. Heirlooms and Treasures.

Often, there are specific pieces of property that parents wish a particular child to have. The grandmother’s engagement ring to their daughter, the father’s pocket watch to the son. With a will, specific assets such as jewelry, collectibles, letters or vacation properties that you want to leave to a specific child can be accomplished through specific bequests.

6. Education Decisions.

If you should die before your child reaches adulthood, how do you want my children to be educated? Planning for your child’s schooling can be done through your Last Will and Testament: your estate can pay for a tutor to continue their homeschooling, for instance. If your kids are in private school, a portion of your estate can cover their tuition.

7. Paying for College.

You can plan within your will for part of your estate to be held in trust for college tuition or other post secondary education.

8. Special Needs Child.

Special needs children face unique challenges and you can protect them with a Special Needs Trust, which can protect future government benefits for which they may be eligible as well as insuring they will have the ability to pay for medical care.

9. Timing.

Children have the right to a childhood, and your estate planning can protect that time of innocence. If they are to inherit a substantial amount of property or cash, for instance, you can decide in your will both how and when your children receive their inheritance.

10. Protecting Them From Themselves.

If your family has a history of addiction issues, you can try to keep your children free from drugs, gambling, etc. by adding a provision to your Last Will and Testament that prevents them from inheriting or delays inheritance if they are exhibiting addictive behavior, such as using drugs or gambling.

What is a “No Contest Clause” in a Florida Will?

Posted By on September 9, 2014

In Florida, can you block someone from challenging your will with a No Contest clause?

 

Last Will and Testament of Tennessee Williams

In Florida, as in all other states, there are laws on the books that establish how your property will be distributed should you die without a will, or if you die without a valid one. So, the smart thing to do in order to make sure that your real estate and personal belongings are inherited by the people you wish, and not the ones that the state legislature has assigned as heirs, is to make a valid Last Will and Testament.

This isn’t that hard to do. A simple Last Will and Testament can be drafted quickly and inexpensively by a Florida estate planning lawyer. If you don’t have a complicated web of assets (like holdings in different states or countries; antiques or collectibles with changing market values; etc.) then finalizing a will to protect your desires and intentions is easy enough.

When you write your will, then you get to decide who gets what. You can be as detailed as you want. If you want you Aunt Midge to get your antique wall clock, then you can specific this bequest. If you want to make sure that your son and daughter have sufficient funds for their college education, then you can explain in your Will how this will be funded.

However, not all family dynamics are peaceful and united. You may have a valid concern that your desires and decisions on who gets what of your property may be challenged after your passing. Maybe you worry that your children from your first marriage will be unhappy with your decisions on leaving the family home to your second wife. Maybe your new spouse will be concerned that your caretaker should not receive such a large bequest, despite your intent to reward them for their compassion in your final illness.

Many people assume they can control any challenges to their will easily enough by including something called a “no contest clause.” It’s a will provision that has been used in every state and it’s been around for many years.

What is a No Contest Clause?

A “no contest” clause is language in a will that states that a person who tries to contest the will – or to challenge the validity of that will on its face – will be rewarded with being totally disinherited or blocked from receiving anything from the decedent. In other words, anyone who fights the will loses any inheritance at all according to the terms of the will.

Some states may find no contest clauses to be acceptable. Florida does not. Florida Statute 732.517 provides:

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

Why Can’t You Use a No Contest Clause in Florida?

Florida law has found that no contest clauses in wills are all too often a bar to justice, keeping courts from hearing valid arguments against wills. As one Florida court has explained:

Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. …. Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in section 736.1108(1) and its probate analogue, section 732.517.

What Can You Do Instead of a Non Contest Clause?

If you wish to insure that your desires are respected after your passing, then there are legal ways to do this as part of your overall estate planning. A Florida estate planning attorney can help you memorize your wishes and plan for your property so that everything you own transfers smoothly and efficiently to those to whom you want it to go — and this can be done at a reasonable cost.

Diminished Capacity To Write A Florida Will – How Do Lawyers Help Protect Your Wishes?

Posted By on August 12, 2014

Florida is a wonderful place to spend your retirement. It’s no surprise that so many people come here to spend their golden years, and here in the Miami and Broward County areas we see lots of seniors who are enjoying an active and full life here in the Sunshine State.

Florida probate lawyers help seniors and elders with their estate planning questions. Some of these queries are quick questions about how Florida law impacts existing estate plans that have been prepared in other states. Some of the questions relate to estate plan basics, like a Power of Attorney, Health Care Surrogate or a Last Will and Testament.

These are savvy and wise people who are seeking to control how their property is going to be distributed after their passing. It’s smart to plan ahead, and Florida probate lawyers are happy to help.

However, there are times when things aren’t so simple and smooth.

What is Diminished Capacity?

Under Florida law (Florida Statute 732.501), you must have a “sound mind” when you make a will or other estate plan document (i.e Trust or Power of Attorney). This is called “testamentary capacity,” and it means that you have the mental ability to understand what property you own or control as well as who are the people to inherit your stuff (”the natural objects of your bounty”). You have to be able to understand what the Will will do, from a practical standpoint, at the time that you sign (”execute”) the will documents. See, In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953).

In Florida, it’s assumed that a person has testamentary capacity when they sign their Will. That capacity can be fleeting; even someone with established mental illness can have capacity to sign a will if they understood what they were doing at the time they made and signed it.

Diminished capacity is something to be shown by someone challenging the Will. If it is shown, then the will isn’t recognized as being legally valid.

Diminished Capacity in the Probate Lawyer’s Office

Since the capacity of the person is critical at the time that their Last Will and Testament is signed, then it’s important that their estate plan and probate lawyer confirm that they have testamentary capacity when their Will is executed.

How can a probate lawyer do that — we’re not doctors or psychologists, right?  Right. However, probate lawyers do have established legal standards they use in situations where diminished capacity may be a concern.

As a Florida probate lawyer, anytime someone wants to have a Last Will and Testament, Durable Power of Attorney, or other critical estate planning documents created or amended (changed), then we must confirm that this client has capacity to take this step. This is true for new clients as well as people we’ve known for years.

Why? It is the right thing to do. It’s not meant to be insulting or presumptuous; it’s for the protection of the client now and for the protection that their wishes are carrying out later, as well.

Florida Probate Attorney and Diminished Capacity

First, probate lawyers take the common sense steps. We observe the client for signs of diminished capacity, protecting them now from capacity challenges to their Will in the future.

Does the client act reasonably: do they know what they own, for example? Are there reasons why they may need special communications but they do understand, given special help? Older clients may have hearing loss, for instance. Their infirmities may mean they are more alert in the mornings than the evenings. Certain pain medications may be impacting their level of alertness and a conference with their physician can be vital.

If the lawyer is confident of capacity, then the finalization of documents proceeds at this point.

If the lawyer is still concerned about protecting his client and their wishes, he can undertake further steps including:

1. Lawyers can look to things like the Handbook published jointly by the American Bar Association and the American Psychological Association, entitled “Assessment of Older Adults With Diminished Capacity.” (Read it online here.)

2. We can also use the ABA Model Rule 1.14 as guidance here. It states:

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

3. There are times when a doctor’s opinion may be helpful. Here, the doctor’s written evaluation at the time that the Last Will and Testament is signed can be powerful evidence of capacity in a will contest down the road.

For Seniors, Protecting Against a Diminished Capacity Challenge Is Important

It is important for the Florida Probate Lawyer to establish capacity at the time that a Will is signed. However, being elderly or having some memory loss doesn’t make a senior citizen legally incapable of executing a valid will (or changing one).

If you are wanting to draft or amend your Last Will and Testament in Florida, and you have concerns that your decisions not be challenged later, then having a Florida probate attorney to help you with your estate planning can be critical to having your wishes honored.

Florida Personal Representatives Acting Badly; Suing the Past P.R. (and Her Lawyer) for Malpractice

Posted By on July 8, 2014

When a loved one dies in Florida, the law immediately creates an “estate” to hold that person’s real estate and personal property until the assets can be legally determined, which are then transferred to the person who inherits it. An executor (in Florida, the person appointed by the Probate Court is known as personal representative or “P.R.”) is appointed to oversee this process – the man or woman who acts as personal representative of the estate is held to the highest standards as a fiduciary and this person is responsible to to the estate’s heirs, creditors and beneficiaries.

 

 

Normally, the personal representative is named in the decedent’s Last Will and Testament.  Often times, the person named as the personal representative isn’t accustomed to dealing with legal matters.  For that reason, Florida law requires a personal representative to be represented by an attorney to assist them in their duties. Which is a good thing. (The Florida Probate Code allows the lawyer to be paid from estate funds for advice given to the estate’s personal representative.)

However, despite having legal counsel, there are times when things go wrong and where a personal representative doesn’t stay the course. Sometimes the beneficiaries seek to have the estate’s representative ousted through court proceedings; other times, the P.R. quits and another personal representative takes over.

There can be all sorts of reasons for a change of personal representatives of an estate. It is not necessarily a red flag of wrongdoing.

However, there are times when a new, or successor, personal representative does discover that bad things have happened during the course of the prior administration of the estate and when this happens, that replacement representative has a fiduciary duty to pursue claims and seek redress on behalf of the estate and its heirs.

Which brings us to the new case of Bookman v. Davidson, where the First District Court of Appeals has held that a successor personal representative who is filing suit for alleged impropriety in the administration of an estate can sue not only the prior estate representative but the attorney or law firm that represented him or her.

Bookman v. Davidson: Case of First Impression

Deborah Irby died and Dana Ford was named as her estate’s personal representative. Dana Ford hired a lawyer to help her with the job. Time passed and Ford quit. A man named Alan Bookman took over as the representative of the estate and began work on the task of settling the estate and getting all the property held by Irby to the rightful owner (and getting her debts paid, her taxes filed, etc.).

Alan Bookman discovered what he believed to be improprieties in the handling of the Deborah Irby Estate. He filed a formal lawsuit against both Dana Ford and her lawyer.  Specifically, Bookman found that before he took the reins, assets of the estate had been transferred or disclaimed that could have been used to pay Irby’s debts.

He sued Ford for the return to the estate of the fees she had been paid to act as its personal representative and he sued the lawyer for a return of the $195,000 that had been paid in legal fees.

Bookman had no choice here. Under Florida law, an estate’s personal representative has the legal duty to act not only within “the best interests of the estate” but also in “the best interests of all interested parties, including creditors.” When Bookman found the assets had been transferred that could have been used to pay the estate’s creditors, he had no choice but to sue in order to return to the estate those assets held by the predecessor representative or her agents.

The lawyer objected to being sued for professional negligence, arguing that Florida law did not allow Bookman to sue him for malpractice regarding his work regarding the estate administration, only Ford could do so since it was Ford that hired him.

The Florida First District Court of Appeals ruled otherwise. Pursuant to Florida Probate Code, sections 733.601-733.620, as the successor personal representative, Mr. Bookman did have “standing” to sue the lawyer who had provided advice and counsel regarding administration of the Deborah Irby Estate even though a different person, Dana Ford, was the estate’s representative at the time.

[Read the full opinion:  Bookman v. Davidson, — So.3d —- ,(Fla. 1st DCA May 05, 2014)]

The Point Here: Personal Representatives Answer to Beneficiaries and Creditors

The point to remember here: the fiduciary duty of a personal representative of an estate in Florida is important and it comes with potential personal liability. The powers, duties, and obligations of that personal representative are many, and they extend to the representative himself (or herself) as well as to beneficiaries, creditors, contractors, accountants, and attorneys. When one person replaces another in the role of personal representative of a Florida Estate, all the powers as well as the duties and obligations are passed like a baton to the successor.

It’s a position of the highest responsibility and its demands are many.

If you have a reason to doubt that an estate’s personal representative, past or present, is acting fairly or accurately in the administration of a Florida estate, then you need to consider your legal rights as a beneficiary or creditor to that estate.

Discuss your situation with a Florida probate lawyer if you have concerns, knowing that the personal representative not only has great power, but great legal responsibilities.

When Are Constructive Trusts Created by Florida Judges?

Posted By on June 10, 2014

In Florida, a constructive trust is a legal remedy that judges use to help people who have been harmed in all sorts of situations, including in probate controversies, divorce cases and with business torts like tortious interference with a business relationship. Said another way, constructive trusts are used to thwart a wrongdoer who has taken advantage of a confidential relationship they have with a victim to gain an unfair advantage over the victim and gain possession or ownership of the victim’s property.

For example, in a probate setting, a wrongdoer may have exerted undue influence over a decedent to gain ownership of the decedent’s homestead requiring a Florida probate judge to hold that a constructive trust exists in order to remedy the improper transfer. In divorce proceedings, a constructive trust may be used for property that is now held unjustly by one spouse that was originally owned by the other spouse. For business deals that end up being fraudulent or unconscionable, business assets can be determined to be held in a constructive trust as a remedy to a civil lawsuit.

Bottom line, a constructive trust is created by judicial action and courtroom advocacy. The judge finds that the property at issue is in a legal trust, with the judge formally making this ruling by order or judgment. It is through this construction that the judge can move ownership of that property back to the victim when, for example, a wrongdoer refuses to sign a deed, transfer the asset, etc.

Constructive Trusts Require a Courtroom

Accordingly, the only way for a constructive trust to exist in Florida is for a Florida judge to be involved – and depending on the type of case it is, a judge can order this relief in an evidentiary proceeding and not just during a full blown trial (for example, in a divorce case).

To prove a constructive trust exists in Florida, a victim must show the following by clear and convincing evidence (a high legal standard):

  1. A promise, either expressed or implied
  2. Transfer of the property and reliance thereon
  3. A confidential relationship
  4. Unjust enrichment.

It’s important to remember that any request for relief in the form of a constructive trust must have a specific piece of property in mind. No one how badly the defendant has acted, you are not able to have a “constructive trust” placed upon the land or personal property of the wrongdoer, in an “umbrella” fashion. The trust can only be imposed upon a target — a house, a bank account — i.e., a tangible asset of some sort that has unjustly enriched the defendant in some way.

Many are confused by this requirement, especially where money is concerned. However, in probate controversies or divorce cases or tortious interference situations involving businesses, money damages from the defendant are the primary type of judicial relief that the judge will consider. It is only when specific property (including specific funds) is in dispute that a constructive trust can be imposed as a remedy.

Examples of property where constructive trusts have been imposed by Florida judges include:

  • Life insurance proceeds (Holmes by Holmes v Holmes, 463 So.2d 578 (Fla. 1st DCA 2010)
  • Residue of testator’s estate (In re Estate of Tolin, 622 So. 988 (Fla. 1993)
  • Survivorship account at a bank (Logie v. J.P. Morgan, 716 So. 2d 319 (Fla. 4th DCA 1998)
  • Real estate (Williams v. Grogan, 100 So.2d 407 (Fla. 1958).

Can a Trust Be Created By a Florida Judge to Remedy Wrongdoing Related to a Decedent’s Property?

Posted By on May 6, 2014

Ask most people what a “trust” is all about, legally-speaking, and they’ll probably describe some form of estate planning tool that goes along with a Last Will and Testament and/or a Life Insurance Policy. This answer isn’t wrong: lawyers draft trust documents all the time, where property is placed into “trust” for loved ones (”beneficiaries”). It’s a sound way to pass things down to children and grandchildren and it’s also often a wise tool to use with tax-planning.

However, that’s not the only way “trusts” are used here in Florida.

Florida takes a position that isn’t held by most states in the country. In Florida, we have something called a “constructive trust”, which is not really a trust at all. Instead, a Florida constructive trust is a form of remedy for someone who has been harmed by another’s wrongdoing – as recently explained in Swope v. Harmon (citations omitted):

In 2005, this court held that “[a] constructive trust . . . is not a traditional cause of action; it is more accurately defined as an equitable remedy.” …. Therefore, “[b]ecause a constructive trust is a remedy, it must be imposed based upon an established cause of action.” We continue to follow this rule … [and] conclude the trial court correctly dismissed the claim for a constructive trust because a constructive trust is a remedy, not a cause of action.

Constructive Trusts Imposed for Victims of Unjust Conduct

Sadly, all too often Florida probate lawyers – particularly Florida probate lawyers involved in probate litigation cases – see people who have been harmed by members of their own family or close loved ones. Family members who have stolen personal belongings and other valuable assets.  It’s often an emotional situation where serious wrongdoing has taken place.

The lawyers involved in these cases often require the help of Florida courts to rectify this type of wrong. However, before a Court will help a probate lawyer the lawyer will need to follow several  procedural steps including, pleading and proving that there was something illegal that was done to the victim, proving up the existence of valuable property and its history of ownership, and showing the present location of the property and its fair market value.

Undue Influence Example

For instance, in situations of undue influence related to a will contest, the beneficiary will need to prove that there was undue influence (see our posts on that cause of action here) and then be able to show which property is at issue (the property which has been transferred to a wrongdoer who is guilty of unduly influencing the decedent).

In this situation, the lawyer may ask the Florida judge to order that the property at issue be placed in a “constructive trust”  – with the victim being the beneficiary of the judicially created constructive trust.

Constructive Trusts in Florida are Created by Operation of Law

Constructive trusts exist only by operation of law. No one can draft a “constructive trust” for a client in Florida. Constructive trusts are created in Florida courtrooms by Florida judges in order to take back title to property that is in the possession of a wrongdoer.  The purpose of a constructive trust is to transfer title to property to the rightful owner. See, Abreu v. Amaro, 534 So.2d 771 (Fla. 3d DCA 1988).

From Abreu:

A constructive trust is a remedial device with dual objectives — to restore property to the rightful owner and prevent unjust enrichment. To impose a constructive trust there must be (1) a promise express or implied, (2) transfer of the property and reliance thereon, (3) confidential relationship, and (4) unjust enrichment…. The person seeking to impose a constructive trust must prove those factors giving rise to a trust by clear and convincing evidence.

Note:  there are other ways that constructive trusts can help people in Florida other than in probate controversies, such as divorce cases and business injury cases like tortious interference with a business relationship. More about constructive trusts in next month’s post.

Florida Inheritance: If You Didn’t Inherit Under the Will, Can You Sue the Lawyer Who Wrote It? Maybe.

Posted By on April 8, 2014

Last month, we posted about what happens here in Florida when someone believes that they are going to inherit something, money – property – jewelry – heirlooms, and then learns that the Will states otherwise.  In some situations, Florida law grants heirs or beneficiaries with the right to sue the person (or persons) that they believe illegally interfered with their expected inheritance.

Lawyers call this a case of “tortious interference with an inheritance,” “tortious interference with an expectancy,” or “tortious interference in estate planning.”

The example we gave was a daughter who sued her father’s second wife after he died for interfering with the daughter’s expected inheritance.

Most of these cases do involve family members — widow or widowers and children from a prior marriage; estranged siblings and the like. However, the Florida courts have also opened the door for another sort of defendant to be sued when there’s a inheritance issue: lawyers.

Florida Courts Allow Lawsuits against Estate Planning Lawyers

In the past, lawyers who wrote Wills and Trusts and other estate planning documents could tell unhappy heirs and beneficiaries that if they were upset, they could not sue the lawyer because of something called “privity.” Under the rule of privity, only a client (the decedent) can sue a lawyer for negligence or malpractice, not heirs and beneficiaries because they were not considered a client.  Thus, a privity defense was a strong ally to a Will drafting lawyer.

However, over time, Florida courts have created a loophole to the privity defense where Will drafting errors can now be claimed by a third party who was the intended beneficiary of the client/decedent.  In these cases, the focus is on the Will itself.  See, Hodge v. Cichon, 78 So. 3d 719, 722 (Fla. 5th DCA), review denied, 99 So. 3d 942 (Fla. 2012).

Then, in 2013, a Florida appellate court changed things even more. In the case of Dingle v. Dellinger, the rule of privity was given some grander exceptions to include other documents and other aspects of estate planning.

In the Dingle case, a lawyer was sued because the plaintiffs claimed the lawyer (and the lawyer’s law firm) made a professional error (or “legal malpractice”) when she drafted documents that gifted land to them.

It seems that a man named John Kyreakakis had hired the defendants to draft a quitclaim deed to gift the property to the plaintiffs, even though another lawsuit resulted in a determination that Mr. Kyreakakis didn’t have the legal right to make the gift. You can’t give what you don’t have, so the plaintiffs’ deed wasn’t worth the paper it was written on.

So, they sued the lawyer (and her law firm) who drafted the quitclaim deed for malpractice and they won.

The court decided that if the plaintiffs could show that the defendants owed any sort of legal duty to them, then they would have a valid legal malpractice claim (the privity rule wouldn’t hold to block them just because they weren’t clients of the lawyer). Why? One of the reasons that an estate planning client hires a lawyer is for the goal of benefiting his or her heirs or beneficiaries.  So, when the client’s intent is thwarted by an error made by a lawyer — like a will or a trust, or here, where Kyreakakis had a deed drafted that was not legally valid — it harms the intended beneficiary.

Florida Heirs and Beneficiaries May Have a Lawsuit against The Decedent’s Lawyer

Bottom line, if you are expecting to inherit something in Florida and are shocked to learn that the Last Will and Testament of your loved one does not provide for it, or that other documents have failed you in your expected inheritance, then you may have a legal claim against the person who may have interfered with your expected inheritance — or against the lawyer or law firm that was responsible for the creation of that Will or other corresponding estate planning document(s).  It all depends on the facts.

Therefore, if you suspect a problem with an inheritance (or lack of one), then it’s advisable to investigate matters and speak with a Florida probate lawyer to learn about your rights. Remember, that there are time deadlines (statutes of limitations) that apply, so don’t procrastinate because your claim, however valid a claim it may be, can be time-barred.

Tortious Interference With An Inheritance or Expectancy — Can You Sue When You Fail to Inherit Under a Florida Will?

Posted By on March 11, 2014

In Florida, unlike some other states, there is case precedent on the books (court opinions) which establishes the legal right for someone to sue and win a claim that their expected inheritance was illegally interfered with by the defendant, despite the language of the probate documents and the fact that they did not inherit under the probated will’s terms.

This case is based upon a claim of “tortious interference with an inheritance” also known as “tortious interference with an expectancy,” or “tortious interference in estate planning”.

As explained in the Restatement (Second) of Torts § 774B, this is a claim where “One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he or she would otherwise have received is subject to liability to the other for loss of the inheritance. . . .”

You can sue for damages when something like this happens in Florida – knowing this is especially important for people who have moved here from other states, they may not realize this kind of cause of action exists.

This type of lawsuit is a claim for relief that has been created by the Florida judiciary: there is no specific statute drafted and passed by the Florida legislature which allows this. It is therefore something that many heirs and beneficiaries in Florida may not know exists, if they do not have a probate lawyer to counsel them, or they do not investigate Florida inheritance laws themselves (e.g., by reading blog posts like this one).

Tortious Claim Based Upon Interference with Inheritance That Was Expected But Not in the Probated Will

This tort is a valid basis for challenging a Last Will and Testament in the State of Florida and was first recognized as a valid probate litigation claim by the Florida Third Circuit Court of Appeals in the case of Allen v. Leybourne. In that 1966 case, the Florida court helped a daughter who went to court to fight for an inheritance she claimed was promised to her by her late father but did not appear in his will as it was probated, because of “wrongful acts” by the defendant, his second wife who was the sole beneficiary of the probated will.

From Allen:

It is our opinion that when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action. While it is true that such a cause of action is difficult to prove, that does not affect the existence of a ground of tort liability.

What is Needed to Prove a Tortious Interference Claim for Expected Inheritance in Florida?

These cases are not easy to bring in Florida — there may be many unhappy relatives and associates after someone dies in Florida who expected to inherit, but did not get included in someone’s will. It’s not enough to be surprised or shocked that you’ve been excluded from a Last Will and Testament.

In Florida, to win a case for Tortious Interference with An Inheritance you must jump a lot of legal hurdles.  These include:

1.  You must be able to provide evidence of these elements of this cause of action:

(1) the existence of an expectancy;
(2) intentional interference with the expectancy through tortious conduct such as duress, fraud, or undue influence;
(3) causation; and
(4) damages.
Nationwide Life Insurance Company v. Perry, citing Claveloux v. Bacotti, 778 So. 2d 399, 400 (Fla. Dist. Ct. App. 2001); Whalen v. Prosser, 719 So. 2d 2, 5 (Fla. Dist. Ct. App. 1998); Allen v. Leybourne, 190 So. 2d 825, 829 (Fla. Dist. Ct. App. 1966); see also Chase v. Bowen, 771 So.2d 1181, 1186 (Fla. Dist. Ct. App. 2000)(Sharp, J., dissenting).

2. You have to be able to show the Florida Probate Judge that you are advancing the Tortious Interference With An Expected Inheritance lawsuit as a last resort after unsuccessfully attempting to get adequate relief in other ways.

As the Florida Supreme Court explains in the case of DeWitt v. Duce, “… if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortuous interference claim may be pursued.”

3. You must be able to show that the person who has died, the “testator” is the person who has been wronged — not you, the beneficiary.

The purpose of this tort claim is not to help beneficiaries or heirs, it is to protect the deceased person’s “… right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.” Whalen v. Prosser.

As the Whalen court explains:

Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.

4. You must be able to obtain your damage award from the defendant, the individual wrongdoer, if you win your case.

This is a tort action against this person, and any judgment for the plaintiff will be one for money damages against the defendant’s individual assets. As with other torts, both compensatory and punitive (punishment) damages are available. However, the claim will not allow you to alter the language of the will itself or amend its terms.

Florida Probate Law: Why You Need Strict, Careful Drafting or Risk a Surprise Result in Probate Court Fight: The Lesson of Cessac v. Stevens

Posted By on February 11, 2014

scales of justice, public domainThe Florida First District Court of Appeal recently ruled on a family situation that provides a real lesson for all Floridians on how important careful drafting of estate documents (wills, trusts, powers of attorney, etc.) are in the State of Florida if you want to avoid probate litigation and probate court determinations of your future property distributions.

In the case of Cessac v. Stevens, the court had before it a controversy over how a power of appointment should work under Florida law, and, in a a surprise to some, the appellate court decided that a Florida power of appointment is a power that must be strictly followed – even if there are facts which demonstrate a different intent on how to exercise the power.  This is only the second case on the books of Florida case law that deals with this particular issue (the other is Talcott v. Talcott).

Lesson in this case: if you’re not careful, you may leave a Last Will and Testament with a provision stating that certain assets are to be distributed in a certain way after your death only to have those assets later be legally found to be restricted in how they are to be distributed: your Will’s provision may be deemed unenforceable. It will not matter how clear the language is in the Will as to what you want to happen.

The result of this opinion may be viewed as harsh and rigid to some, but Florida courts have the power to decide the rights of those who come before them with controversies. In other words, once a case is in litigation and it works its way to the appellate court, the parties will most likely have to live with what the appellate court’s ruling (or appeal it to the Florida Supreme Court, if that high court agrees to review the case).

Cessac v. Stevens

In this situation, Sally Christiansen wrote a Last Will and Testament which left the remainder of her estate to Joanne Cessac. Sally Christiansen left nothing to her children. They were disinherited heirs.

Sally Christiansen was also the beneficiary of three Trusts that her father had set up long before, and it was clear in the language of her will that she intended for the assets in these three Trusts to go to Joanne Cessac.

However, the Florida court ruled that the assets in the Trusts would go to Sally Christiansen’s children instead. Why? The language that her father had placed in each of the Trusts included an identical restriction:

“Upon the death of my daughter, [Ms. Christiansen], the Trustees shall transfer and deliver the remaining principal of this share of the trust, … as my daughter may, by her will, appoint, making specific reference to the power herein granted…. If [Ms. Christiansen] … dies without exercising the power of appointment granted herein, [her] share of this trust shall be divided into equal shares so that there shall be one share for each child of [Ms. Christiansen]….”

In Sally Christiansen’s Will, she did mention the three Trusts but her will did not reference the power granted in each Trust allowing her to devise her shares in them via her Will. The fact that the Will referenced the three Trusts as existing was argued to evidence Sally Christiansen’s desire that the assets of the Trusts go to Joanne Cessac.

The children sued. They won.

The court agreed with the children’s probate lawyers: because her Will failed to provide any “specific reference to the power [of appointment]” the trust assets were to be distributed as Sally Christensen’s father provided when he drew up the original trust documentation: “divided into equal shares” between Ms. Christiansen’s children.

From the Cessac opinion:

In sum, we conclude that to properly exercise a power of appointment such as the powers provided for in the trusts at issue in this case, the decedent must at least make reference in his or her Will to the powers of appointment held by the decedent. Here, the mere reference to one of the trusts and to the location of the property of the other two trusts was not sufficient to even substantially comply with the “specific reference” requirements in the trusts. Accordingly, because the decedent failed to comply with the requirements of the trusts when attempting to execute her powers of appointment, the assets in the trusts did not become part of her estate and must pass to the decedent’s children, as directed in the original trusts, rather than to Ms. Cessac as provided in the decedent’s will. We recognize the seemingly harsh result of our conclusion that Ms. Cessac will not receive the assets the decedent apparently intended for her to receive. However, this result is a function of the intent of the original donor, who had the right to place whatever restrictions he desired on the disposition of his property. The decedent was obligated to comply with these restrictions, and compliance would not have been difficult here, as all that was necessary was some reference to powers of appointment in the decedent’s will.

Lesson of Cessac v. Stevens

Florida probate courts respect document language; they will review documents word by word to determine how the document is to be interpreted according to Florida law and determine the distribution of assets after someone has died. Estate planning documents needs to be carefully prepared in order to protect the decedent’s last wishes.

From this case, it is clear that probate litigation often involves fights over provisions that are 25 words or less but those words can be the deciding factor in who gets what in a sizable estate. However, that fight may be worth the effort in some situations.  In this case, the result is that the children were able have their mother’s wishes disavowed and instead had the wishes of their grandfather fulfilled.  Probate litigation can be tricky.

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