Lots of family members involved in a trust or will contest complain that what the other side is doing is baseless. A weird Florida statute gives you the chance to recover some of your attorneys fees as damages. To see how you may be able to get damages (in the form of attorneys fees) against your opponent (or their lawyer), read about Florida 57.105. Florida Statute 57.105– background So, we know that Florida law is generally made up of two things: statutes and caselaw. The legislature creates the laws which the governor signs. Our judges tell us what those statutes mean and how they operate. So, why would you refer to this law as “weird?”. Well, first of all, Florida 57.105 is one of those statutes that seems to create more litigation than it was intended to diminish. Second, it is often mis-understood and incorrectly applied. By the lawyers ! In fact, ask an experienced will or trust litigation lawyer. They will tell you that there are a lot of probate lawyers who say they go to court, but actually don’t try cases. And they often don’t completely understand this statute and when it is appropriate. Here is “everything” you may want to know about Florida 57.105 and even a recent case from the 3rd District Court of Appeal on this subject. 57.105 in easy-2-read, plain-English 57.105 is a Florida statute It provides that sanctions may be awarded against a party in a lawsuit for having a baseless, or frivolous […]

57.105 Florida sanctions is a serious law. Heck, sanctions are serious. If you are faced with a “safe harbor” letter or notice, or a 57.105 motion, here are some things you may want to know. Sanctions in Florida Lawsuits A Florida trial judge has the inherent authority to punish, or sanction, bad conduct. In Florida, there is the inequitable conduct doctrine. For a trial judge to sanction someone, she needs to make very specific findings of fact in her order. Notice of an evidentiary hearing is required. The party who may be sanctioned or punished is entitled to notice and an opportunity to put on a defense. But beyond the inequitable conduct doctrine, there is a peculiar law, or statute, which permits a Florida judge to sanction a party to a lawsuit, and the party’s lawyers, for maintaining (and refusing to withdraw) a frivolous position. This may occur, for example, under Florida Statute 57.105 57.105 Florida’s Sanctions Statute On August 25, 2021, the 3rd District Court of Appeal issued its opinion in Viera v. In Re: Liptito, LLC. The 3rd DCA is the appellate court for Miami-Dade County. This opinion dealt with sanctions in the form of attorneys fees against an attorney. 57.105 is a statute that permits a party to obtain attorneys fees if the other side is doing something frivolous. Put another way, this law may be a path to get a lawsuit dismissed. That’s because the threat of being sanctioned sometimes compels a party or their counsel […]

Being an aggressive litigator is what a lot of clients want. But you also need to know how to play defense. In football, when a team is up by only a few points and has the ball. You have to decide: do you go for it, or punt and “trust your defense?” Well, understanding affirmative defenses is an often overlooked part of probate and trust litigation. We think affirmative defenses Florida are so important that we gave a Florida Bar-approved continuing legal education seminar on this very topic. Now, let’s talk a bit about this subject, and a recent case. Admitting Facts but Avoiding Liability When you are served with a lawsuit, you receive a copy of the complaint. To start a lawsuit, a complaint is filed. When you receive a copy of the complaint, you have 20 days to respond. You can read more about timetables and how a case proceeds by reading the Florida Rules of Civil Procedure. Check out Florida Rule of Civil Procedure 1.140 When you “answer” the complaint, you may raise affirmative defenses Florida. Affirmative defenses are not simple denials. Affirmative defenses are the type of “yea, but…..” defenses. Think of them this way: even if the allegations or accusations in the complaint are true, you still win ! Examples of common affirmative defenses include statute of limitations and accord & satisfaction. Failure to properly raise affirmative defenses means that you waive those defenses. 4th DCA Opinion on Affirmative Defenses Florida — must read On […]

There are a number of ways to handle a will challenge Florida. These depend on the facts of your particular case. However, how you approach your probate lawsuit depends upon your STRATEGY. Whether you are claiming a will is invalid based upon an insane delusion, dementia or undue influence, read on. What is a Will Challenge Florida? A will challenge Florida is an attempt to have a will declared void. Or invalid. In some instances, you are challenging only a part of the will. Such as a provision that leaves a specific asset to a particular beneficiary. Or, the “residue”, or “residuary” clause that changes who gets everything else in the end. A challenge may also be thought of, or described as, a Will Contest. A will may be valid if it was not executed OR signed properly. If you don’t have two witnesses who sign in the presence of the person– and each other, who also sign in everyone’s presence– the will is not valid. Sometimes you simply start with the basics of a will challenge. Was the will signed correctly? To read a Florida appellate court opinion about will signings, click HERE. If the person who “signed” the will did not know what was going on, the will is not valid. Probate litigators call this lacking the requisite testamentary capacity. It does not mean that a guardianship was created. A Florida resident who signs a will must know, in general terms, what she is doing. Does she know […]

If a Florida will was not signed properly–or not signed by the person and witnesses in the proper order– it is not valid. What do you need to know about a Florida will signing? Well, many heirs and family members often have questions about a will challenge. Knowing how to make a claim is super important. In some cases, you may have less than 3 months to object to a will. Let’s talk about the legal requirements for a valid Florida will signing. For a free video on objecting to a will, CLICK HERE. Florida Legal Requirements For a will to be valid in Florida, most probate lawyers know the rules. Here they are in a nutshell: The person must sign the will in front of two witnesses, who likewise sign the will in front of the person and each other. The will must be signed at the end. And that’s it ! Or, you could simply read Florida Probate Statute 732.502. That law is the law for how to sign a will. (For a free Florida probate video on over-turning a will, click HERE.) Don’t Forget the Self-Proving Affidavit But, how do you prove that this was done? Well, most probate lawyers have a self proving affidavit. Florida Probate Law 732.503 even gives you the form. The self proving affidavit includes a statement from the notary that the person and the witnesses actually signed the will in the notary’s presence. What’s the big deal with the Florida self-proving affidavit? […]

Forgery is serious business. And, in Florida, such allegations are not new or out of the ordinary. Do you know how many people allege that a will or trust was forged? Or, rather, that mom or dad’s signature on a will was a forgery? Understanding the law of forgery is important to winning your case. Perhaps even more so if you are defending a signature or deed that is alleged to be a forgery. So, whether you are claiming a forgery occurred or are answering a Florida forgery lawsuit, here is some helpful insight to your Florida lawsuit. (For a free Florida probate video on whether a will is a forgery, simply click HERE.) A Forgery….. really? So, if you ask any serious, experienced, probate trial lawyer, what would they say? They would say that very few forgeries are proven. Maybe because in most cases, clear and convincing evidence is required to prove a forgery. Maybe because forgery is such a brazen act, right? Often times, forgeries are not alleged (discovered) until one passes away. I mean it’s rare for a living person to learn that her signature was forged. One of the best ways to learn a lot about a legal topic quickly to is read appellate opinions. You know, cases. What judges write. To read a 2017 Florida appellate court opinion on forgery, CLICK HERE. But in many cases, that’s exactly what happens. Mom or dad die in Florida. There’s a deed going to someone. And family members […]

Do you believe a will was forged? Or a signature to the will was? If so, you may only have a limited time to act. How will you exercise your rights or make your claim? To view a FREE WILL FORGERY FLORIDA video, click HERE. To learn more about this topic, including an important appellate opinion on Florida forgery law, keep reading. Appellate Case On September 6, 2017, Florida’s 3rd District Court of Appeal issued an important opinion. While it is not a will or trust case, it tells you “all” you need to know about forgery in Florida. Bennet v. Mortgage Electronic Registration Services, Inc. goes into depth explaining this topic. But wait, there’s more! If you want to read a will case that explains and discusses the requirements for signing and witnessing a will, click HERE. The case of Jordan v. Fehr is from the 1st District Court of Appeal. It is a 2005 appellate opinion dealing with a will appeal. Will Forgery Florida If a will is not executed with the formalities required by the Florida Probate Code, it is not valid. And any document such as a will or trust which is forged is not valid. When someone comes forth with a will, how do you know the signature is valid? Well, usually you have witnesses and a notary and a self-proving affidavit. But, you have to tell the court what is the product of a forgery. Is the signature of the now deceased Florida resident […]

An interpleader contingency lawyer may be the “car” that drives you to the courthouse door ! (Keys to the courthouse door? Perhaps….) And gets you your inheritance. IF you can find one. After all, there are not a lot of lawyers who take inheritance or interpleader cases on a contingency fee basis. And, if you do find one, how do you know that they have the experience and aggressiveness that most consumers want? To learn about interpleader lawyers, you can read more by clicking HERE. To consider more about finding a contingency fee lawyer or learning more about how this may assist you with your case, keeping reading. What is Interpleader? Interpleader is an action or lawsuit by a “stakeholder.” The stakeholder typically has possession of money or property or funds. What kind of funds? Think millions and millions (no exaggeration !!) of dollars in Florida life insurance proceeds. And IRAs. Mutual funds. Bank Accounts. Brokerage and financial accounts. A typical stakeholder is an insurance company, or annuity company or mutual fund company or bank. When there are competing claims to the money, the stakeholder asks a court to deposit the money with the court. With the court’s registry. And they want to go and be done. All that’s left is for the family members, heirs, beneficiaries (or others) to fight it out. In the end, a judge will tell you who inherits. When Does an Interpleader Contingency Lawyer Make Sense? Legal services are expensive. Let’s face it. Aggressive or […]

Did you get notice of an interpleader action? Life insurance policy proceeds? Bank account? IRA or mutual funds? If you did, you only have a limited time to make your claim to the money. Understanding how to make your claim and prepare for victory can involve finding an experienced Florida interpleader lawyer. We have previously written about federal court interpleader. Now, let’s talk a bit more about this important topic. After all, you only get one chance. Talking to the Stakeholder and Making a Claim Most “stakeholders” like insurance companies don’t want to get involved in litigation. They have the insurance proceeds or annuity. When there is a doubt about who inherits those funds, they can interplead those funds into a Florida court registry. Having a lawyer who can talk to the company’s lawyers can help. Often, you can find out how much is at stake and get statements and information quickly. And then the people can make their claims without the insurance or annuity company involved. Who? Like heirs, beneficiaries and family members who believe they inherit the IRA or bank account or death proceeds. Interpleader actions can occur in state court and federal court. In exchange for “getting rid of the money” the “stakeholder” seeks to be discharged and removed from the case. That just leaves the family members or heirs to make their claims. Florida Interpleader Lawyer Ask any experienced interpleader attorney and they will tell you that literally millions of dollars are on the line. “I […]

Did you get served with a federal court interpleader suit? Somebody, most probably a financial company, wants to put money into the court registry. Insurance proceeds? Annuity? Bank account? Whether you inherit or can make a claim may depend on how you act and handle this unique type of lawsuit. To understand what this is all about, keep reading. For free Florida legal commentary on interpleader law in general, check it out by CLICKING HERE. What is Federal Court Interpleader? Interpleader is an action where someone with property wants to get rid of it. And avoid any liability. Or avoid spending more time or money dealing with “who gets it.” Interpleader actions are filed in both Florida state courts and also Federal Courts. In Florida, literally millions and millions of dollars are subject of interpleader actions. Insurance policy proceeds, IRAs, bank accounts, annuities, financial accounts. You name it. It’s common that a life insurance or annuity company or bank is holding a lot of money. And there may be competing claims. In other words, there’s a question of who inherits it. And potential litigation. What does the “stakeholder” do? State and federal law permit the life insurance death proceeds or the annuity to be deposited into the federal court registry. The stakeholder wants to be discharged or relieved of liability. The money is left there to be resolved by those who make a claim to it. But your claim needs to be based upon the law and filed properly with […]