Everyone seems to know the “buzz words” of “undue influence.”  Few know what it really means.  Generally, a will or a trust in Florida arrives at the courthouse steps with the presumption of validity and correctness, providing it is executed according to the law.  In other words, if it is in writing, signed at the end of the document by the person who made it, has two witnesses, we presume it’s valid.  A will that is procured or obtained by undue influence is invalid, providing that you can prove it in a court of law.  Mere “influence” is not enough.  It’s ok to ask your mom or dad for money.  It’s ok to ask to receive an inheritance in a will or a trust.  There’s no harm in asking, right? 

Florida trial attorney John Pankauski, a member of the Probate and Fiduciary Litigation Committee of the ABA Real Property, Trust & Estate Law Section, was recently chosen as the Vice-Chair of the Litigation, Ethics & Malpractice Group. Pankauski is a trial lawyer with the Pankauski Law Firm PLLC in Florida, and restricts his practice to trials and disputes involving probate, wills, trusts, estates and contested guardianships.

How can two (or more people) read a trust document and believe it says completely different things?  It happens all the time.  Trust beneficiaries interpret the trust document one way, and other beneficiaries, or the trustee, interpret it another way……even in the face of so-called “clear” trust language.   When this happens, a way to resolve the difference is to file a declaratory judgment action (“dec action”) and ask a judge to read the trust document and tell everyone what it says.  If the trust document is clear and un-ambiguous, the court may be able to rule without the necessity of a trial.

When Florida trust beneficiaries and trustees disagree on what a trust document says or means, ask a Florida court to interpret it.  Get the trust document in front of the Florida judge, in the probate division, and if the trust language is clear and un-ambiguous, consider filing a motion for summary judgment.  The interpretation of a trust, or a will, is a pure quesiton of law.  The summary judgment motion may be the perfect way to resolve the issue of what the trust document says or means.  And if you do it right, or soon enough, you can literally save thousands of dollars in attorneys fees and costs for your client, as compared to preparing for and attending a trial.   Advocate hard.  Litigate smart.

When preparing a will or a trust, many times the creator (the client) wants to treat beneficiaries equally.   Take, for example, a mother or father with three chidren.  “I want my estate to go in three equal shares, to each of my children.  That’s the fair thing ” the client says.  But “equal” is not always “fair”.  And “fair” does not always mean “equal.”  Consider a loving, doting child who assists the parent with everything from shopping to household chores and who shares holidays together.  Contrast that child with a sibling who is distant, both geographically and on a personal basis, from parent.  Is it “fair” that the doting child receive an “equal” share as the child who has no interest in the parent’s life?

A person who files a lawsuit typically gets to choose the “venue”…which court hears the case.  Great deference is given to the plaintiff to determine if she wants to sue the defendants where the cause of action acrued or where the defendants reside or do business.  If a lawsuit is filed in the “wrong” state or court, it may be dimissed if there is a more convenient or “better” forum.  The Florida Supreme Court recently discussed the legal concept of “forum non conveniens” in the Cortez v. Palace Resorts case.  Although it is not final  yet, it is instructive.  Email michelle@pankauskilawfirm.com for a copy of the opinion.

A new statute prohibits an estate planning attorney from being a beneficiary “under” a will drafted by that estate planning attorney.  More concisely, gifts to lawyers and lawyers’ relatives “under” a will drafted by the lawyer is void.  See new Florida Statute 732.806.  For a copy of this, email michelle@pankauskilawfirm.com

On June 14, 2013, Florida Governor Rick Scott signed a new 140 page bill into law, creating Florida Statute’s new Chapter 605.  This legislation, Senate Bill No. 1300, is the brand new “Florida Revised Limited Liability Company Act.”  For a copy, email michelle@pankauskilawfirm.com

Florida Governor Rick Scott signed Senate Bill 492 on June 17, 2013, which makes new law for issues involving estate planning, trusts and estates.   Among other things, a gift to a lawyer under a will drafted by that lawyer is void.   The new law also provides guidance on personal jurisdiction in trust lawsuits, service of process issues and rules for filing a caveat or estate tax return . For a copy, email michelle@pankauskilawfirm.com.

A valid Florida power of attorney must be recognized, or accepted, by third parties.  Chapter 709 of Florida’s statutes deals  with powers of attorney and tells us what third parties should do when presented with a valid Florida power of attorney.  Failure to recognize a valid power of attorney may be frivolous and fees may be awarded against a third party that fails to honor the POA without contesting the validity of it.  See the (not final) case of Maximiliana Albelo v. Southern Oak Ins. Co from the January term of Florida’s 3rd District Court of Appeal, opinion filed February 6, 2013.