Are you the beneficiary of someone’s Florida estate plan ?
If you are the beneficiary of someone’s Florida estate plan, you will want to read this recent Florida legal malpractice case that was handed down literally days ago.
BENEFICIARY SUES OVER GIFT OF REAL ESTATE BY POWER OF ATTORNEY
- Robert and Janet sued a Florida law firm alleging that the Florida law firm improperly wrote legal documents for a lifetime gift of real estate .
- They sued the Florida law firm for legal malpractice, alleging that the Florida law firm fouled up a Florida deed — screwed up a lifetime gift of some valuable Florida real estate.
This is a Florida legal malpractice case about gifting real property and whether you can sue someone else’s Florida law firm when the gift gets fouled up.
SHOULD THE FLORIDA LAWYERS HAVE READ THE POWER OF ATTORNEY MORE CLOSELY ?
- A gentleman hired a Florida lawyer to prepare a quitclaim deed
- He wanted to gift a piece of Florida real property to Robert and Janet.
- He said he had a power of attorney that authorized the gift on behalf of the principal.
As many Palm Beach estate litigators, and Palm Beach probate litigators, know….. making a gift under a power of attorney creates a number of questions and red flags.
- Does the power of attorney permit you to make gifts of valuable property?
- Was the power of attorney drafted keeping in mind the recent change to the Florida power of attorney law?
- Does the power of attorney permit you to make gifts to the intended beneficiary?
FLORIDA POWER OF ATTORNEY LAW
- Under Florida power of attorney law, a person with a power of attorney can’t just give away valuable property to anyone they please.
- Those with a Florida power of attorney cannot give themselves money, in general.
- They can’t use a Florida power of attorney to give away money or property to their wife or husband or kids, in general.
- One with a Florida power of attorney cannot exceed the authority or the scope of the Florida power of attorney. When these things happen, Florida power of attorney litigation explodes. You’re dealing with issues of breach of fiduciary duty in Florida, misuse of a Florida power of attorney, conflicts of interest, acts of self-dealing.
The Florida deed was drafted and recorded. A lifetime gift, right? Not so fast. Enter the estate litigators.
MAKER OF GIFT DIES — ESTATE SUES OVER GIFT OF FLORIDA REAL ESTATE
- Several months later, the maker of the gift, called the grantor, died.
- Now his Florida estate gets involved—- #FloridaEstateLitigation.
- The Florida widow — the Florida surviving spouse – – sued over the lifetime gift of the Florida real estate.
FLORIDA POWER OF ATTORNEY LITIGATION — YOU CAN’T MAKE GIFTS WITH THE POWER OF ATTORNEY
- A Florida court concluded that the power of attorney did not authorize the person to make a gift .
- The Florida deed was invalid
- The gift of Florida real estate had to come back.
BENEFICIARIES SUE THE FLORIDA LAW FIRM
Q: Can the beneficiaries of a bad Florida deed sue the Florida law firm who prepared the deed ?…… even though those beneficiaries were not the clients of the Florida law firm, and never hired the Florida law firm?
A: Yes, providing that the beneficiaries of the gift, or the estate plan, or the deed, were third-party intended beneficiaries of the work by the Florida law firm.
- One generally cannot sue a Florida law firm for legal malpractice unless you are in privity with the Florida law firm.
- Typically, you can only sue for Florida legal malpractice if you are the client — or if you hired or contracted with the Florida law firm.
- An important exception to Florida legal malpractice law, and Florida malpractice against Florida attorneys, is when third-party beneficiaries are intended beneficiaries of the law firm’s work.
HOW DO I SUE FOR FLORIDA LEGAL MALPRACTICE ?
To bring a lawsuit for legal malpractice against a Florida lawyer or a Florida law firm you generally have to argue:
- the attorney’s employment;
- the attorney’s neglect of a reasonable duty; and
- the attorney’s negligence was the proximate cause of the client’s loss.
As the Florida court said: “If the parties are not in privity, to bring a legal malpractice action, the plaintiff must be an intended third-party beneficiary of the lawyer’s services.”
AM I A THIRD PARTY INTENDED BENEFICIARY OF THE WORK BY THE FLORIDA LAWYERS ?
To assert a third-party beneficiary claim, you must argue:
- a contract;
- an intent that the contract primarily and directly benefit the third party;
- breach of the contract; and
- resulting damages to the third party.
As the Florida court said: “A party is an intended beneficiary only if the parties to the contract clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong. “