Suppose that a loved one passes away and they leave you, say, $10,000, under a Florida will or from a Florida trust.   Should you take that $10,000 if you believe that the will or trust is invalid and you want to attack it?  Are you able to take the $10,000 on a Monday, and then, say, on a Tuesday, file a probate lawsuit to declare the will or trust void, saying that it was obtained by undue influence?  In Florida, beneficiaries of a will or a trust should not accept the benefits of a trust or a will prior to then attacking the trust’s or will’s validity. 

To object to a will or a trust as invalid, that is, to attack the validity of a will or a trust in Florida, and have it (them) declared void, one must consider the renunciation rule.  Generally, one cannot also receive a benefit from a will or a trust in Florida, and still attack that will or trust as invalid.  You must renounce it.  The renunciation of that will or trust in Florida may be conditional: such as conditioned on your success in that trust litigation or your probate litigation contest.  However, a recent case, Fintak v. Fintak, decided August 23, 2013 by Florida’s Second District Court of Appeal, suggests that this rule is not applicable when the grantor or creator of the trust, is the one who is trying to set the trust aside.

Beneficiaries of Florida trusts may be able to exercise their rights against a “bad” Florida trustee even when it may appear that the statute of limitations has expired.  Translation:  a beneficiary of a Florida trust may be able to sue a Florida trustee years after the wrong was committed. But these cases are very fact specific and turn on a number of issues. A trustee who engages in a continuing tort, or repeated wrongs, may be liable for those wrongs even after one believes that the statute of limitations has expired.  

In Florida, parties to litigation may be responsible for paying the other side’s attorneys fees.  In the context of attorneys fees in Florida, Florida has so called “fee shifting” statutes.  Florida statute 768.79 says, among other things “…. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand…..” Does this Florida fee shifting statute apply to everyone and every case? 

Florida has its fair share of will contests and trust disputes, where beneficiaries and family members do “battle” over what a trust or will says.   There are two important rules when considering whether to initiate probate litigation, or to file a lawsuit regarding a trust or will. First, a court is going to do its very best to interpret, or construe, a will by trying to learn the intent of the person who created the trust or will.  Courts often say:  “In construing a will, the polestar for the court is the intent of the testator. The testator’s intent is to be measured by the language he selected and used by looking at the entire instrument, not isolated words, clauses or paragraphs….

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?