Is Disqualification of Judge Proper? 4th DCA Appeal opinion on Florida probate judge disqualification

Uncategorized • Dec 17, 2015

Florida probate litigation can get heated between you and the other side. There are stepmothers who don’t get along with step-daughters and they are fighting over the Homestead or how dad should be cared for, or a power of attorney. Sisters fighting brothers in will contests or trust lawsuits Florida. One thing no Florida trust lawyer wants is for it to heat up between you and the judge. When is it proper to seek to disqualify a probate Florida judge and does it even make sense to ask your Florida estate lawyer to do this? How do you disqualify the probate judge in West Palm Beach?

Motions for Disqualification

Estate lawyers in Florida know that judges are trained to be objective and unbiased.
Most beneficiaries or “civilians” who don’t handle estate lawsuits regularly may not know this.
Many times, probate Palm Beach beneficiaires and heirs at law and family are confused or even frustrated by an estate proceeding, let alone a probate lawsuit.
If a beneficiary or a trustee Florida or personal representative “loses” a motion or a hearing, they may incorrectly believe that the judge is biased or not impartial.
This guess would be wrong.
True, sometimes a judge, who is, after all, only human, is going to be prejudiced towards a case.
But that is the exception. So, before you ask your Florida probate litigator to try to recuse a judge, consider reading a recent opinion about this.
Have you discussed the possibility of disqualifying the probate judge with your probate litigation attorney?
Florida probate lawyers know that there is a specific process for disqualifying a judge.
It all starts with filing the appropriate motion in West Palm Beach probate court or wherever the case is held.
Do you know what has to be in that motion for disqualification?
Florida estate lawyers know that it is not as simple as just filing a motion there are realities to consider.
Sometimes a probate judge may get offended that you feel they cannot handle the case justly.
That being said Florida estate attorneys know that the reality is that sometimes a judge needs to be disqualified.
Probate attorneys Florida know how to file a motion for disqualification but what happens if the Judge does not follow the rules?
Check out this recent case out of the Third District Court of Appeal to learn more.

Messianu v. Pigna

This was actually an appeal from the probate court seeking something called a writ of prohibition.
This is all arose after the probate judge denied a motion for disqualification.
On appeal the Court noted that the judge had acted incorrectly.
The only thing for the judge to consider was whether the motion had alleged the proper legal elements.
The accuracy of those pleadings was for another day.
These are the kinds of specifics that are important in probate litigation.
In the end after all of this it seems hardly likely that the judge is going to get to stay on the case.
What do you think?

Want to learn more?

Check out the entire case by clicking here.

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