Boyes, Farina & Matwiczyk

561.694.7979

Notables

Temporary Injunctions in Estate, Trust and Guardianship Litigation

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;

Read More

Freeze Orders in Trust Litigation Cases

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. 

Read More

Plain Meaning of the Trust is What Governs

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.

Read More

Homestead Orders are Permissive

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. 

Read More

Ashes to Ashes – Ashes are not Property to be Divided

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….

Read More

Florida’s Homestead Waiver

…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. 

Read More

Disclaimer of Real Estate – Thanks But No Thanks!

The recent Third District Court of Appeal opinion in Lee v. Lee…, (Fla. 3d DCA January 23, 2019), addressed the question of whether a legal description for a disclaimer of real estate is required on a disclaimer.  The short answer to this question is that a disclaimer of real estate is valid without a legal description of the property, if it not to be recorded for purposes of providing constructive notice to one doing a title search for the property.

Read More

Charities Beware of Testamentary Bequests: The Cy Pres Doctrine

The Fourth District Court of Appeal’s decision in SPCA Wildlife Care Center v. Abraham…, 75 So. 3d 1271 (Fla. 4thDCA 2011) reminds us that even a vaguely worded testamentary gift can be enforced, even if the named charity does not exist or the charitable intent of the testator is not worded as specifically as required.

Read More

Appeals in Probate Cases

Rule 9.170 of the Florida Rules of Appellate Procedure provides a non-exclusive list of the types of orders that can be appealed from in probate cases. This Rule was recently examined by the Third District Court of Appeal, in the decision made in Maercks v. Maercks…, on April 3, 2019.

Read More

Deference to the Intent of a Testator or Settlor

The Third District Court of Appeal’s recent opinion in Sibley v. Estate of Sibley, — So. 3d —, 2019 WL 1461325 (Fla. 3d DCA April 3, 2019) reminds us that a testator’s or settlor’s intent is to be given paramount deference in constructing the language of a testamentary document.

Read More

wills-trusts-estates
business-litigation
actec
legal-specialty-certification
super-lawyers
distinguished
asla-logo