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…)

January 3rd, 2012

There’s a well-respected, senior attorney I know who tells all beginning lawyers that, if you have a filing deadline, file 5 days early and you’ll never have to worry about cutting it too close to the deadline.  As a practical matter, that may not always work, but that’s still good advice.

If that ‘rule’ was followed in Rothman-Browning v. Marshall, it may have avoided an appeal from an order by a Florida trial court prematurely approving a guardianship plan. (more…)

November 11th, 2011

When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help.  Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty.  From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages.  In other words, a person cannot be held to account unless he or she is actually a party to the litigation.

In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party to the underlying proceeding. (more…)