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Category:Blog

As Near as May Be: The Cy Pres Doctrine

November 7, 2019

The Third District Court of Appeal’s August 21, 2019 opinion in Reno v. Hurchalla, applied the cy pres doctrine from SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4th DCA 2011), reminding us again that a decedent’s intentions under this doctrine can be substituted by another plan which is believed to be as close to the original plan as possible if the original plan becomes impossible or impracticable of fulfillment….

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Alexander v. Harris — So. 3d — (Fla. 2d DCA May 17, 2019)

October 24, 2019

This interesting Second District Court of Appeal opinion kept with the public policy of having a legal obligation to support a child, supporting the Florida Supreme Court’s longstanding decision of Bacardi v. White, 463 So. 2d 218 (Fla. 1985).

In Alexander, the father was the sole beneficiary of a special needs trust, established with funds from the settlement of a product liability action brought on the father’s behalf after he was catastrophically injured in a car accident as a minor….

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Wallace v. Comprehensive Personal Care Services, Inc. — So.3d — 2019 WL 260741744 (Fla. 3d DCA, June 26, 2019)

October 10, 2019

This was a somewhat lengthy opinion from the Third District Court of Appeal, including the dissenting opinion.  The trial court’s decision to, among other things, enjoin a party in a guardianship matter to attach (or even reference) the medical records of the alleged incapacitated person and also enjoin the parties (other than the alleged incapacitated person) from having ex parte communications with the court-appointed examining committee, was subject to review.

After the death of the alleged incapacitated person’s wife, Comprehensive Personal Care Services commenced a trust matter against the alleged incapacitated person (Milton), and his son Mark, regarding an irrevocable trust executed in 2011 by Milton and his late spouse. …

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Wilson v. Wilson – 4th DCA, August 14, 2019

September 26, 2019

This recent Fourth District Court of Appeal opinion reminds us of the fundamental concepts of contract law as they relate to a decedent’s estate.

In Wilson, Marilyn Wilson and her late spouse, Paul Wilson, were married in 2011.  Prior to their marriage, they entered into a prenuptial agreement, wherein the couple waived their right to an elective share.  The prenuptial agreement did allow the couple to make testamentary gifts to each other, by way of will or codicil, and without invalidating the prenuptial agreement. …

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Temporary Injunctions in Estate, Trust and Guardianship Litigation

September 12, 2019

Florida courts use the extraordinary remedy of imposing temporary injunctions only sparingly, and grant temporary injunctions only when the allegations proof of the facts support the entry of this relief.  

“A party seeking a temporary injunction must prove: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; (4) that a temporary injunction will serve the public interest.” Jouvence Ctr.

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Freeze Orders in Trust Litigation Cases

August 29, 2019

The traditional standards for imposing injunctions or freeze orders apply in trust litigation matters.  The Fourth District Court of Appeal’s opinion in McKeegan v. Ernst, 84 So.3d 1229 (Fla. 4thDCA 2012) was one of the first decisions along these lines.  In McKeegan, Ms. McKeegan challenged the entry of an ex parte temporary injunction order imposed on a trust bank account.  Ms. McKeegan argued that the temporary injunction order was facially deficient because it did not include sufficient factual findings to support each prong of the four-part injunction test….

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Plain Meaning of the Trust is What Governs

August 15, 2019

The Second District Court of Appeal’s opinion in Ebeling v. Ebeling (June 7, 2019) reiterated this concept of trust construction.

In Ebeling, the trial court construed the terms of a trust to determine the entitlement to the trust’s assets.  The trial court’s decision on distribution to contingent beneficiaries named in the trust rater than the decedent’s estate was reversed.

The trust was governed by Illinois law but that did not make any difference. …

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Homestead Orders are Permissive

August 1, 2019

In the Fifth District Court of Appeal’s recent opinion in Mullins v. Mullins, June 7, 2019, the court reversed the probate court’s decision, holding that a will established the interest in the real property and not a homestead order from the probate court.

The will that was admitted to probate in this case devised the decedent’s property to her three children, giving a life estate to her two sons.  Subsequently the probate court entered a homestead order, reflecting that the property was devised in equal shares to the decedent’s three children, but the order did not mention the life estate interest of the two sons. …

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Ashes to Ashes – Ashes are not Property to be Divided

July 18, 2019

The question of whether ashes of a deceased person can be divided comes up often among family members, distraught over the loss of a loved one, and particularly in modern day family situations with divorced parents and blended families.

This question was answered in 2014 in the Fourth District Court of Appeal’s opinion in Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4thDCA 2014).  Ashes are not property as defined by Fla. Stat. 731.201(32) and thus not subject to partitioning or division….

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Florida’s Homestead Waiver

July 2, 2019

Florida Statute 732.7025, effective July 1, 2018, set forth language to include in a deed for a spouse to waive his or her Florida homestead rights:

Section 732.7025(1) provides the following language: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”

This is not a waiver of other protections. Subsection (2) sets these out: “The waiver language in subsection (1) may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death. …

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