WHERE’S THE MONEY? BENEFICIARY SUES FLORIDA TRUSTEE: TRUST JUDGE WHO ORDERED NON TESTIFYING EXPERT TO BE DEPOSED IS REVERSED
In a recent Miami, Florida trust case, a Florida appeals court reversed a trial court which ordered a non-testifying expert to be deposed. Why does this matter? This is a case supporting a Florida trust beneficiary’s rights.
What Was the Trust Beneficiary After?
There was a Florida trust which owned a business, which was sold. The trust beneficiary wanted to know
- where the money went
- how much of the business the trust owned
- how much money was in the Florida trust, and
- how much money should have been in the Florida trust.
The trust beneficiary was the beneficiary of a Florida trust left to him by his father and grandfather. But the Florida trust beneficiary had little personal knowledge as to the value of the business or the actions of his trustee.
Trustees Behaving Badly?
Was this a case of a Florida trustee not revealling trust information to a beneficiary, or, was this just all a misunderstanding? One question is why the trust beneficiary didn’t know all the information about the sale of the business, and how much money, or sale proceeds, the Florida trust should have owned.
Trust Beneficiary Rights in Florida: The Florida Trustee’s Duty to Provide a Beneficiary with Relevant Information
After all, under the Florida trust code, Florida trustees have a responsibility :
- to give “relevant information” to their trust beneficiaries. This is a fiduciary duty of a Florida trustee. If a Florida trustee does not tell the trust beneficiary about the trust money, that is a breach of duty by the Florida trustee. In addition, Florida trustees
- have a duty to account to Florida trust beneficiaries. Each year, a Florida trustee must provide an accounting. The accounting must show all beneficiaries, among other things, what assets the Florida trust owned, what trust assets were sold, what the sales price was— and how much money is in the Florida trust .
Financial Discovery and Forensic Accounting
The Florida trust beneficiary did what most trust beneficiaries do when they don’t have all the information about the Florida trust. The beneficiary
- conducted financial discovery and
- hired a forensic accountant, as an expert. The expert accountant was hired to review the record and the numbers to form an expert opinion regarding the amount of the trust beneficiary’s damages. The expert accountant was placed on the beneficiary’s witness list and was later removed and replaced with a different accounting expert.
Trust Beneficiary’s Trial Strategy
The defendants who the beneficiary sued, wanted to take the deposition of the trust beneficiary’s original accounting expert, who had been removed from the witness list. The Miami trial judge issued an order requiring the deposition of the expert, but only as a non-expert fact witness. The trust beneficiary’s trial strategy had been to consult with this original expert accountant, and to have this accountant testify at trial. But the strategy changed, and the trust beneficiary’s litigator, or trust trial lawyer, decided to use another expert at trial.
Florida trust trial lawyers use experts to
- find out where trust money is,
- to assist in calculating damages for trial, and
- to help find out how much money should be in the Florida trust.
But, why did the Miami judge order the expert accountant to testify as a fact witness?
Florida Trial Strategies and Work Product are Protected
The rule in a Florida trust lawsuit, including Florida Rules of Civil Procedure 1.280, is that a party to a lawsuit may only discover facts held by a nontestifying expert under certain limited circumstances. When an expert has been employed in preparation of trust litigation, but will not testify at the trust trial, the expert’s facts and opinions may not be discovered by the other side. In this case, the trust beneficiary ‘s expert accountant work was deemed trust beneficiary “work product” — and could only be discovered “by a showing of exceptional circumstances.” A victory for the trust beneficiary!
Victory of Trust Beneficiary
The Florida appeals court reversed the Florida trust judge in Miami. No exceptional circumstances existed. In this Florida trust case, the original expert accountant was precisely the type of expert who is protected by the rules — his thoughts, impressions, and opinions do not have to be revealed to the trustee. They are the trust beneficiary’s work product— protected. The expert had no personal knowledge of the underlying facts of this trust case other than those given to him by the beneficiary’s trust lawyer. In other words, the beneficiary’s expert was not a fact witness. The trustee failed to demonstrate that “exceptional circumstances” existed.
For Attorneys and Litigators
If you would like a copy of this opinion, or information about preparing a trust beneficiary for victory at a Florida trial, please email Michelle@pankauskilawfirm.com. Need to discuss the use of testifying and non-testifying experts at a Florida trust trial? Our firm uses a select group of very talented experts both in our beneficiary rights practice, and in the firm’s defense practice, for such matters as causation, damage assessment and calculations, mental state, lack of capacity, susceptibility to undue influence, prudent investing.