Where there are inconsistent or contradictory statements alleged in a probate petition or a complaint, what can you do? What is the election of remedies doctrine? What is the purpose of it? What should my probate litigator know about the election of remedies doctrine? Bueno v. Workman, an opinion from the Fourth DCA, explains what you need to know about this topic.
Probate Litigation and Election of Remedies
- Although probate litigators West Palm Beach frequently represent heirs and plaintiffs, most trust and estates trial attorneys also handle the defense of fiduciaries and personal representatives.
- What do you do if you are defending a petition to overturn a will, in Florida probate court, and the person who wants to overturn a will is also saying that they are nominated to be personal representative and because of that should have preference in appointment as personal representative?
- What do you do about a situation where there are contradictory statements?
- Election of remedies is a doctrine that you can understand by reading a October 28, 2009 Fourth DCA case, Bueno v. Workman.
- Probate lawyers in Florida are very familiar with the Fourth DCA because it is the appellate court for Broward County, Martin County, and Palm Beach County.
- The Fourth DCA hears a fair share of probate and trust appeals.
Bueno v. Workman
- In Florida trust and estates litigation, election of remedies forces a party, prior to trial, to pick what legal avenue they will be traveling on.
- The intent of the election of remedies doctrine is to “prevent double recoveries for a single wrong.”
- This makes sense.
- Why should someone be able to recover for two conflicting arguments on the same issue?
- Under florida trust and estates law , election of remedies applies ” only where the remedies in question are coexistent and inconsistent.”
- What does this mean?
- ” If the allegations of facts necessary to support one remedy are substantially inconsistent with those necessary to support the other,then the adoption of one remedy waives the right to the other.”
- This means that you can’t talk out of both sides of your mouth.
- For example, you can’t say that the light was green in one count and then that the light was red in another count.
- How is the election of remedies different from judicial estoppel?
- Read the entire case to find out by clicking here.Want to know more about Florida probate litigation? Consider these free resources:
- Read the Florida Courts webpage on the probate process: http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/probate.stml
- Read the Florida Probate Code: http://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Read the Florida Probate Rules: https://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Here are the Rules Regulating the Florida Bar if you are interested in hiring a Florida probate litigation lawyer and want to know more about our ethical rules and our rules of conduct: http://www.floridabar.org/divexe/rrtfb.nsf/WContents?OpenView
- Here are the Florida Rules of Civil Procedure: http://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Watch free Florida Trust, Probate & Guardianship videos, which include important topics of Florida estate, guardianship, attorneys fees, & trust law.
- There is no cost, no sign up, no one will ask you for your email address to see these dozens of free Florida probate videos: http://www.pankauskilawfirm.
com/Firm-Overview/FAQS.shtml