February 12th, 2013

We know that very few cases actually end up making it to trial.  Some reports put the number of cases that settle or that are dismissed before trial around 97 percent.  Many of those that settle likely settled as a result of court-ordered mediation.  As fiduciaries find themselves increasingly the target of litigation, here’s a word of caution out of Florida about the scope of releases in settlement agreements and an admonition about knowing exactly what it is you’ve agreed to.

The trustee of the Julian Marie Breslow Revocable Trust and Pompano Masonry Corporation participated in a court-ordered mediation with Joseph Anastasi, they reached a settlement, and they executed a mediation agreement.  As part of that settlement, the Breslow Trust and Pompano agreed that their release of claims against Anastasi extended to Anastasi’s wife and children.

After the settlement was finalized, the trustee of the Breslow Trust refused to sign the release of claims.  What was the trustee’s reason? (more…)

October 17th, 2012

A misspelled name;  an incomplete name of a charity; an “Inc.” instead of an “LLC.”  Grantors get names wrong.  Testators make typos.  Attorneys make scriveners’ errors.

Usually it isn’t that hard to figure out that the grantor actually meant “JoAnn” instead of “JoAnne” or to figure out that the grantor meant “Habitat for Humanity” and not “Habitat for Humans.”

But then there are times when getting a beneficiary’s name wrong could mean all the difference in the world.  At a minimum, it could open the door for a court to find an ambiguity in the trust instrument, which, in turn, could open the door into a very protracted, expensive court fight over the grantor’s intent.

In Miami Children’s Hospital Foundation, Inc. v. Estate of Hillman, a recent case out of Florida, we’re reminded about the need for precision in naming beneficiaries. (more…)

September 14th, 2012

Lawyers like to get paid.

Clients like it if they can get someone else to pick up the tab for their lawyer’s fees.

That’s why a Florida appellate court’s decision in Bonney v. Bonney stings. (more…)

August 21st, 2012

We’ve taken a look at the Florida appellate courts’ seemingly endless string of cases reversing trial courts that have removed fiduciaries without notice and an opportunity to be heard.

In Kountze v. Kountze, we have yet another reminder of this basic rule, but this time in the context of removal of a trustee and with a little different twist. (more…)

July 11th, 2012

In fiduciary litigation cases, it’s common to encounter courts and practitioners who don’t really appreciate the difference between a litigant’s individual capacity and that litigant’s representative, fiduciary capacity.  In other words, the two capacities tend to get conflated.

In Beekhuis v. Morris, a Florida appellate court reminds us that there really is a difference between someone acting individually and that same person acting in a representative capacity as a fiduciary. (more…)

June 6th, 2012

If you’re not familiar with Florida Statute 744.331, there’s been some historical controversy about the role of the ‘examining committee’ established under the statute.  For our purposes, in short, after a petition to determine incapacity is filed, an examining committee of three people is formed to make a determination of whether the alleged incapacitated person is actually incapacitated. 

A trial court in Florida recently found the statute to be unconstitutional.  Let’s see why. (more…)

May 23rd, 2012

Section 737.307 of the Florida Statutes provides for a limitation of actions against a trustee in two circumstances.  The first limitations period is six-months.  The second limitations period is four years.  So, what’s the distinguishing characteristic between the two limitations periods? (more…)

May 16th, 2012

When settling a fiduciary litigation case, it’s a fairly common practice to agree to the creation of a reserve fund from which to pay various estate or trust related expenses that will be incurred in the future.  Recent litigation out of Florida reminds us that when creating a reserve fund, you will want to be specific about what expenses can be paid from the reserve. (more…)

May 7th, 2012

It’s not easy being a trustee, so if you’re a state that wants to create a positive atmosphere for fiduciary business, you’ll have a trust code that encourages financial institutions and individuals to accept that fiduciary role.

So states do this well; others, well, not so much.  One aspect that is almost uniform, however, is the difficulty with which it is to put trustees personally on the hook for a successful litigant’s attorney’s fees.  That’s why, when it happens in a case like Jacobson v. Sklaire, we take notice. (more…)

May 2nd, 2012

In Miller v. Miller, the trustees of the family trust of which Clifford Miller was a beneficiary almost completely prevailed on an appeal of a final judgment refusing to remove the co-trustees, approving a lease renewal entered into by the trustees, and awarding attorney’s fees.  So, where didn’t they prevail? (more…)