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Can an Improperly Executed Trust Amendment Be Validated Under the Statute Permitting Reformation to Correct Mistakes of Law Affecting the Settlor’s Intent?

Uncategorized Aug 16, 2019
post about Can an Improperly Executed Trust Amendment Be Validated Under the Statute Permitting Reformation to Correct Mistakes of Law Affecting the Settlor’s Intent?

What happens if a trust is created but it was not properly signed by two witnesses? What if a Florida trust is not properly executed? Is a trust that is not properly executed in Florida still valid? Can an amendment’s improper execution be corrected under the statute permitting reformation of mistakes? If you are involved in trust litigation where a mistake was made in the execution of a Florida trust, you may want to read Kelly v. Lindenau, a May 17, 2017 Second DCA opinion. Here, the validity of a trust amendment was in question. The trust amendment in the Florida probate case conveyed settlor’s residential property to a beneficiary. The issue was that the trust amendment was not signed by a second witness. Therefore, according to Florida trust law, it was not properly executed. The successor tustee brought action against the beneficiary in the aendment seeking declaration as to the validity of the trust amendment. The benefificary filed a counterclaim seeking reformation of the trust amendment, and the trial court ultimately granted the beneficiary’s counterclaim. However, the Second DCA disagreed with the trial courts decision. The appellate court help that “amendment’s improper execution could not be corrected under statute permitting reformation of mistakes, and constructive trust was improper remedy for error in execution.” To read the entire case, click here.

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What are the Rights of a Person Determined Incapacitated in Florida?

Uncategorized Aug 15, 2019
post about What are the  Rights of a Person Determined Incapacitated in Florida?

What is Florida Statute 744.3215? Did you know that if you are deemed incapacitated in Florida, certain rights may be taken away from you? Can all of my rights be taken away from me? What rights will I still have if I am a Ward? How can my guardianship lawyer help me to understand my rights? Florida Statute 744.3215 is the relevant statute. It lists the rights that a person retains when determined incapacitated and the rights that may be removed.

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Florida Appeals and a Petition for a Writ of Certiorari or a Petition for Cert

Uncategorized Aug 15, 2019

Do you know how to handle one of those Florida probate appellate matters if it comes your way? There is a very recent case that talks all about it. A petition for a Writ of Certiorari or a petition for a Writ of Cert in Florida courts; that’s when you leave the trial court and go to the appellate court to try to get relief. There are three requirements; you have to establish a departure from the essential requirements of the law, there was a legal error; two, it resulted in material injury and you’ll have that material injury for the remainder of trial; and you can’t rectify that or correct it on a post-judgment appeal. In other words, “Appellate Court, I need help, now! What’s going on at the trial level is improper, there is an error of law and it can’t be fixed at a later time.” Florida Peninsula Insurance Company v. Deporter, April 10th, 2019 handed down by Florida’s Fourth District Court of Appeal. It’s not a probate case, but for you people who are involved in a state lawsuit, will contests, trust lawsuits in Florida, if you’re at the trial level and you need help from the Appellate Court during the trial and you can’t wait for post-judgment, you can’t wait until after your jury trial, you want to read this case.

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Guardianship Lawsuits and the Right to Marry

Uncategorized Aug 15, 2019
post about Guardianship Lawsuits and the Right to Marry

Does a Ward have a right to marry? If you are a Florida guardianship lawyer, or a family member involved with an aging or fragile adult who is subject to a guardianship, you will want to read the Fourth DCA’s March 2,2016 opinion in the Smith case.

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Florida Business Lawsuits on a Contingency

Uncategorized Aug 9, 2019
post about Florida Business Lawsuits on a Contingency

When does a Florida business lawsuit on a contingency make sense? Florida shareholders and business owners, listen up! If you are the partner or a member of a Florida LLC, and are now involved in a business lawsuit in Florida, can you afford it? Here’s what Florida partners and former shareholders need to know. A contingency fee for your Florida business lawsuit may or may not make sense. Serious Business Lawsuit Lawyers Ask any business owner who has been forced out by their Florida partners, and he or she will tell you that you need to hire a tough litigator. What does this mean? You want to find a lawyer who is experienced. You should consider how long a law firm has been in business, and how many years of experience the Florida attorneys at the firm have. Ask the business lawyers you are interviewing how often they go to court. Let’s consider Florida probate law as an example. Many probate lawyers do not go to court. Instead, they write wills and trusts. However, probate litigators, like the attorneys at Pankauski Hauser, do NOT write estate plans. Instead, our attorneys fight hard in court for our clients. Trial experience is imperative if you are in need of someone to represent you in a Florida business dispute. Look for a Florida business attorney that is aggressive, yet professional. You want someone who will work hard and fight hard for yo, both inside and outside of the courtroom. You want a West […]

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Florida Federal Trust Lawsuits, Conversion, and Civil Theft

Uncategorized Aug 9, 2019

If you’re involved in a trust dispute, it might be a federal case. That’s right! If you’re a beneficiary or you’re even a trustee of a Florida trust, should you file in Federal Court vs. State Court? What are the advantages or disadvantages? And, if you have allegations about somebody taking property, is that conversion, if they’re taking trust property improperly, or is it civil theft which is a different tort that gets you treble damages and there’s an attorney fee provision. But civil theft requires felonious intent, right? It requires a criminal intent, it’s different than other torts that Florida trust law provides or lets somebody go to court over if you’re arguing over trust property and whether it was handled properly or improperly. You can read the Inglis case, it’s on West Law 2017 WL637485; it discusses a federal court case involving someone’s revocable trust that’s now irrevocable, issues of conversion and civil theft.

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Florida Trust Lawsuits and Venue, Can You Transfer the Case Because of Improper Venue?

Uncategorized Aug 8, 2019

There was a very recent case in April 2019 in Florida regarding a Broward matter in a Flagler County matter regarding a trust. An action was filed regarding a trust and the issue became one of venue, trust venue. Where are you suing your trustee? Where are you seeking relief regarding your Florida trust? That’s different than personal jurisdiction. This recent case was interesting because Florida not only has venue statutes or laws, and rules and laws for the transfer of cases when venue is improper. And remember, venue means what court do you go to in Florida? Where’s the proper place to bring an action? And then you can also deal with non-Florida states as well. You can file a motion to dismiss and say, ” The venue is convenient somewhere else outside of the state of Florida.” Or you can say, ” This trust lawsuit should be in Broward County, or Flagler County, or Orange County.” That’s venue. You can read the Cohen case, C-O-H-E-N vs. Scarnato, S-C-A-R-N-A-T-O; it’s a Fourth District Court of Appeal case out of Broward. The date is April 10th, 2019. Talk to your trust litigation lawyer about where you can sue your trustee or where the proper venue is or form the proper court to exercise your rights under a Florida trust.

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How to Appeal a Florida Ruling on Attorneys Fees

Uncategorized Aug 8, 2019

If you’re involved in a Florida lawsuit, particularly a trust lawsuit, an estate or a guardianship lawsuit or probate proceeding, attorneys fees are very very important; they’re what we call the “X factor” here. Why? Because you need very specific findings in a probate court to get attorneys fees and also the other side of that legal coin, if somebody is seeking attorneys fees from a trust, an estate or a guardianship, they have to prove their case in front of a judge and the judge has to make very specific findings of fact. So, it’s almost a little subspecialty of the law. To learn more about what’s required in an order to get attorney fees in a legal matter, you can read the Scire v. Hochman case. It’s an April 10th, 2019 case from Florida’s Fourth District Court of Appeal. It’s not a probate case, but it does talk about what does the judge have to put in an order on attorney fees when you’re involved in Florida litigation.

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Estate Lawsuits and Trust Lawsuits and the Defense of Unclean Hands.

Uncategorized Aug 8, 2019

Can you use unclean hands if you’re being sued in a Florida trust or estate lawsuit? You know, Florida probate litigation lawsuits involving estates and trusts permit you to file defenses. And many times, people are sued over an estate, a probate or a trust improperly. Now, what you should be doing and talking to your trust litigation lawyer about, is raising defenses, affirmative defenses. And a very recent case talks about the defense of unclean hands and when you can raise that. It’s an equitable defense that permits you to raise the defense that somebody who is suing you can’t come to court and get relief if they have caused the problem. You can read more about it in the Corrigan case, Corrigan v. Vargas, it’s a Fifth District Court of Appeal case from April 5 th 2019. It’s not a probate case, but this Appellate Court opinion does talk about Unclean Hands in a Florida lawsuit.

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How to End your Florida Lawsuit, quick and easy. Sort of.

Uncategorized Aug 8, 2019

If you’re involved in a Florida trust lawsuit and you have a disagreement about what the Florida trust says, here’s something that you can do: file a motion for summary judgment, or a motion for judgment on the pleadings, give the trust document to the judge and tell her to tell you and everybody else in your Florida trust lawsuit what it says. How can you do that? Well, first of all, what you have to know is the interpretation of a trust document, or most writings in Florida, is a pure question of law. What does that mean? It means generally you don’t need evidence. You can give it to a judge and she’s going to tell you what it says. The next thing you want to understand is when you read the document or the trust, look for the settler’s intent, which is generally done by simply reading the document. If it’s unambiguous, the court reads the document and tells the beneficiaries and trustee what it says. Remember, just because two beneficiaries or a beneficiary and a trustee have a fight or an inheritance dispute about what the trust says, doesn’t mean it’s ambiguous. You might be able to file a motion for summary judgment or another motion and have the court simply rule on what the trust document says, saving you time and money. Now, you can read more about this by going to the Horgan case 249 So. 3d 683. It’s a 2018 case from Florida’s […]

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