How to do you incorporate by reference an arbitration clause in a Florida contract? (October 22, 2014 Palm Beach lawsuit opinion)

A case from West Palm Beach’s appeals court issued yesterday, October 22 2014, deals with the issue of how to insert an arbitration clause in a Florida contract: so called “incorporation by reference.”  Why should probate litigation firms Palm Beach care about this? 

Trust and Will Disputes Settled by Arbitration?

• Whether you can, or whether trust or estate beneficiaries must, resolve probate lawsuits by arbitration
• Is a hot topic across the country for both estate planning attorneys who write wills and trusts, as well as probate litigation law firms
• Remember: arbitration is typically private and confidential
• By agreeing to arbitration, or by being compelled to arbitrate, estate beneficiaries & trustees are giving up significant probate rights: notably the right to be a probate courtroom in front of a judge who is bound to apply the rules of evidence and procedure, in addition to Florida Probate and Trust laws
• Conventional wisdom suggests that you may be able to bind trust beneficiaries to arbitrate, but not estate beneficiaries who may be involved in probate litigation Palm Beach, or estate lawsuits
• So, consider your father who retired to Boca Raton and had a revocable living trustwith his Lake Worth probate attorney as trustee.  Since your father’s passing, the living trust is now an Irrevocable Florida Trust.
• If you are a trust beneficiary, and if you want to, for example, contest the trust or file a trust beneficiaries’ rights lawsuit against the Lake Worth trustee, can you file a Palm Beach County trust lawsuit?  Or must you arbitrate?

Incorporation by Reference: Will Writing

• Finally, why should some probate lawyer Palm Beach Gardens care about this Palm Beach appeals court case?  After all, it deals with a health care company and an employee contract
• Probate lawyers who write wills and trusts typically create a “pour over” will for clients with a revocable living trust.
• The simple will incorporates by reference the revocable trust
• This is very important if you are a trustee or the executor of the will and someone files a trust contest or objects to the trust.  Why?
• Because if the will properly incorporates by reference the living trust, the person who is filing the trust lawsuit, and suing with a trust challenge, that person needs to ALSO file an objection to the will in the probate: in addition to filing a trust lawsuit.  (Why?  There’s a Palm Beach probate appeals case that says you have to).

Here is a copy of the recent 4th District Court of Appeal’s opinion:http://4dca.org/opinions/Oct%202014/10-22-14/4D14-215.op.pdf