Riskless Florida Probate Litigation? a look at 733.106 & Anderson v. McDonough (April 8, 2016, 2nd DCA)

Uncategorized • Apr 17, 2016

What if you could sue a Florida estate to overturn the will without any risk? What if you were cut out of a Florida estate plan, and then someone dies, and you believe the will that was changed is void. Can you sue to object to probate in Florida without paying attorneys fees if you lose? Well, dis-inherited beneficiaries of probates & estates, as well as probate litigation law firms who defend wills and estates, should read, and re-read the Anderson v. McDonough case from Florida’s 2nd District Court of Appeal, issued April 8, 2016. Here is a link to read this entire Florida probate appeals court opinion on attorneys fees in will contest lawsuits and Florida Probate Code 733.106: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/April/April%2008,%202016/2D14-2605.pdf I could see some family members, or probate lawyers, saying: I don’t have anything to lose by filing a probate lawsuit (except costs.)

Do Dis-inherited Heirs & Probate Beneficiaries Have A Free Ride to Petition to Revoke Probate?

Consider this scenario: Mom lives in Boca Raton with $5 Million in her revocable trust
Mom passes away and her living trust now becomes irrevocable
You don’t get any notice of a probate in Delray Beach and no notice of trust under the Florida Probate Rules or the Florida Trust Code
You learn that a few days before your mother passed away from dementia, in Hospice care, she changed her will to leave you nothing
You want to object to that will because you believe the Florida will and estate plan is not valid because mom did not know what she was signing and you have questions about undue influence in estate plans
BUT, your Palm Beach probate litigator warns you that if you file to overturn the will, and you LOSE your estate lawsuit, you will have to pay the other side’s costs and maybe attorneys fees

Objecting to the Florida Will with Nothing to Lose?: Section 733.106 helps dis-inherited family members, heirs and beneficiaries who were cut out?

You file a probate lawsuit anyway, and a trust lawsuit in Palm Beach County
You object to the will because you know that under other wills that your mom had, you were a beneficiary
You want the old will re-instated which left an inheritance to you
But, under this new last will, you are not a beneficiary: you inherit nothing
Let’s assume that you lose your lawsuit: you don’t overturn the will, you don’t inherit, and the last will which cuts you out is declared the valid will. This is a very real possibility, one of perhaps a few possibilities, which you should consider when trying to decided if you want to litigate over a Florida inheritance under a will
So, let’s talk about trial or litigation strategy for a Florida estate lawsuit
Do you have anything to lose by objecting to the will and filing a probate lawsuit to get an inheritance?
Should you file to overturn the will and the probate? Should you find some probate litigator in West Palm Beach who will take your case on a contingency fee so you don’t have to shell out any attorneys fees?
Well,…. maybe? Yes? First, if you lose your lawsuit you will have to pay the other side’s costs. This probate commentary is not going to go into what constitutes “costs.” So, consider that this probate lawsuit thing is not really risk-free. But if you can get over that cost hurdle, consider this about will litigation in Florida:
Next, you can rest assured that the other side, the estate or the personal representative of the Palm Beach probate, or the beneficiaries under the will, will file a motion for attorneys fees against you if you lose your probate contest
But, if the last will, the deathbed will, is valid and you LOSE your Florida estate lawsuit, you don’t inherit anything because the will leaves you nothing
Under 733.106, and the Anderson case, a Florida appeals case about probate litigation attorneys fees, you are not personally responsible for paying the other side’s attorneys fees
Why?
Because 733.106 only makes you pay costs
Florida Probate Law 733.106 does make you pay attorneys fees if you lose, but payable from the part of the estate which you inherit
And since you don’t inherit anything under the will which disinherits you, and which you could not overturn, there is no pot of money–from you!– to pay the other side’s attorneys fees
The Anderson case says that you are not personally responsible for the estate’s attorneys fees in this situation
The only exception to this “riskless” attack on the probate by one who has been dis-inherited is (besides paying costs) if you are found to have engaged in bad faith, or frivolous conduct
What is bad faith or frivolous conduct?
If you have no basis in law or fact to file the probate lawsuit or to object to the probate, then your lawsuit or your conduct can be sanctioned
You could be made to pay the other sides attorneys fees, but there are two big “If’s”
You may have to pay the other side’s attorneys fees for the litigation IF they filed a proper motion based upon Florida 57.015, or the Bitterman case, which talks about frivilous lawsuits and bad faith conduct
To comply with Florida 57.105, they have to send you a letter first
Understand that a court has the inherent authority to make you pay fees if the court finds bad faith
You may have to pay fees if you lose your Florida probate lawsuit IF the court has a hearing and makes specific findings of fact that you engaged in bad faith litigation or that your claims had not basis in law or fact
So, does this Anderson case make those who are cut out of a Florida will more comfortable about hiring an estate lawyer to file suit? Perhaps
Does this make it “less risky” for someone to file a will contest? Perhaps, if you don’t have anything to lose but costs
On the one hand, I could see some family members, sons or daughters who received no inheritance, willing to take a gamble and file to overturn the will or object to probate. I supposed that one mindset might be: What have they got to lose except costs?
But, this also means that probate attorneys who defend estates, probates and personal representatives in Florida, may also be inclined to send you a Florida 57.105 letter or to file a motion for attorneys fees against you based on bad faith or baseless estate litigation
So, there is downside to estate lawsuits and probate litigation. And remember, you should never, ever, engage in lawsuits just for the sake of it: your claims must be in good faith with some facts or law or beliefs to support them.