What are affirmative defenses? Are affirmative defenses available in Florida probate litigation? Why should every trust and estates lawyer be familiar with them? During litigation involving the probate process in Florida, affirmative defenses can prove to be a very useful trial tool.
Affirmative Defenses: Florida trust, estates, and probate litigation
- In addition to admitting or denying a complaint, affirmative defenses can be utilized in certain situations to yield better results in your trust and estates matter.
- Probate lawyers who don’t handle probate trials may not be familiar with these affirmative defenses or the Florida Rules of Civil Procedure.
- However, probate trial attorneys West Palm Beach and trust and estates litigators Boca Raton know that claiming an affirmative defense can be a valuable trial strategy.
Bueno v. Workman
- This October, 28,2009, Fourth DCA opinion thorougly discusses affirmative defenses.
- There are three affirmative defenses that anyone engaged in a petition to revoke probate, a tortious interference of inheritance lawsuit, or any other probate litigation lawsuit in Florida should know about.
- What are they?
- 1) judicial estoppel 2) equitable estoppel 3) waiver
- Trial attorneys Delray Beach know that the two types of estoppel are very different.
- Judicial estoppel prevents a party from taking one particular side of a case in a proceeding, getting finality or judgement, and then coming back in another proceeding with an inconsistent position.
- This upholds the integrity of the Florida judicial process.
- Without judicial estoppel, people could file 10 different lawsuits, taking different positions on the same issue, without ever being convicted to their allegations.
- What is equitable estoppel?
- Equitable estoppel is when someone makes a “representation to a material fact that is contrary to a later-asserted position”
- With equitable estoppel, someone has to rely on that position and it has to be detrimental to the person relying on it.
- Example: ” You promised me this and I only did that because of your promise.”
- According to Florida probate rules, what is a waiver?
- A waiver is a voluntary and “intentional relinquishment of a known right.”
- By signing a Florida waiver, you are knowingly giving up something.
- You are unable to, at a later time, make a claim regarding what you waived or gave up.
Want to learn more?
Read the entire case by clicking here.
- User’s Guide for Florida Probate Litigation & Administration of Estates, Wils & Probates
- Want to know more about Florida probate litigation? Consider these free resources:
- Read the Florida Courts webpage on the probate process: http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/probate.stml
- Read the Florida Probate Code: http://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Read the Florida Probate Rules: https://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Here are the Rules Regulating the Florida Bar if you are interested in hiring a Florida probate litigation lawyer and want to know more about our ethical rules and our rules of conduct: http://www.floridabar.org/divexe/rrtfb.nsf/WContents?OpenView
- Here are the Florida Rules of Civil Procedure: http://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Watch free Florida Trust, Probate & Guardianship videos, which include important topics of Florida estate, guardianship, attorneys fees, & trust law.
- There is no cost, no sign up, no one will ask you for your email address to see these dozens of free Florida probate videos: http://www.pankauskilawfirm.com/Firm-Overview/FAQS.shtml