GUARDIANSHIP: TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HONOR THE WARD’S CHOICE OF GUARDIAN WITHOUT FINDING THAT THE APPOINTMENT OF HIS DESIGNATED PRENEED GUARDIAN WAS CONTRARY TO HIS BEST INTERESTS: TRIAL COURT’S FINDINGS THAT PRENEED GUARDIAN MOVED WARD SEVERAL TIMES AND DID NOT COMMUNICATE WELL WITH STAFF OF NURSING FACILITY WHERE WARD WAS CONFINED DID NOT SHOW THAT PRENEED GUARDIAN ABUSED POWERS GRANTED TO HER BY DESIGNATION; DIFFICULTY COMMUNICATING WITH STAFF AT NURSING FACILITY WAS NOT AN ABUSE OF POWER

Case Decision Date: Reviewed by

Martinez v. Smith, ___ So. 3d ___, 40 Fla. L. Weekly D695 (Fla. 4th DCA March 18, 2015)

“A rebuttable presumption exists that the preneed guardian is entitled to serve as guardian” unless “the preneed guardian is found to be unqualified to serve as guardian” or the appointment of the preneed guardian would be “contrary to the best interests … Click To Read Full Case Law Review...

GUARDIANSHIP: INCAPACITATED PERSONS: AN ALLEGED INCAPACITATED PERSON IS NOT REQUIRED TO PAY THE FEES AND COSTS ASSOCIATED WITH A PETITION TO DETERMININE INCAPACITY BROUGHT IN GOOD FAITH BUT IN WHICH INCAPACITY WAS NOT FOUND: COURT URGES LEGISLATURE TO CLARIFY WHO IS RESPONSIBLE FOR PAYING COURT APPOINTED ATTORNEY’S FEES IN THIS SITUATION

Case Decision Date: Reviewed by

Steiner v. Steiner, ___ So. 3d ___, 40 Fla. L. Weekly D559 (Fla. 2d DCA March 4, 2015)

The son and daughter filed petitions to determine that their parents were incapacitated. Although the petitions were brought in good faith, the court appointed examining committee found that the parents were not incapacitated. As a result, the trial court dismissed the petitions … Click To Read Full Case Law Review...

TRUSTS: GUARDIANSHIP: CIVIL PROCEDURE: SUMMARY JUDGMENT: ORDERS: RULES OF CONSTRUCTION: AMBIGUOUS ORDER: PAROL EVIDENCE: TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT DETERMINING THAT STIPULATION AND GUADIANSHIP ORDER UNAMBIGUOUSLY PREVENTED MAKER FROM AMENDING HER TRUST: ON REMAND, TRIAL COURT SHOULD CONSIDER PAROL EVIDENCE

Case Decision Date: Reviewed by

Whiting v. Whiting, ___ So. 3d ___, 40 Fla. L. Weekly D539 (Fla. 5th DCA February 27, 2015)

The mother created a trust, which provided for equal distributions to her three sons upon her death. Three years before she died, “concerns about [the mother’s] mental competency arose,” and two of her sons filed competing petitions for appointment as her … Click To Read Full Case Law Review...

TRUSTS: FAMILY TRUST: CIVIL PROCEDURE: DISCOVERY: NOTICE OF PRODUCTION FROM NON-PARTY: UNDER AMENDMENT TO FLA. R. CIV. P. 1.510, AN OBJECTION TO A NOTICE OF PRODUCTION FROM NONPARTY IS NOT SELF EXECUTING, BUT THE TRIAL COURT MAY BE REQUIRED TO CONDUCT AN IN CAMERA INSPECTION OF DOCUMENTS CLAIMED TO BE PRIVILEGED: PRIVILEGE LOG NOT REQUIRED UNDER RULE 1.510 BUT COURT MAY FASHION PROCEDURAL SAFEGUARDS FOR PRIVILEGED MATERIALS: APPEALS: CERTIORARI: AS A GENERAL RULE, CERTIORARI WILL NOT BE USED TO ADDRESS IRRELEVANT AND OVERLY BROAD DISCOVERY REQUESTS, AND PETITIONER FAILED TO MAKE A SHOWING THAT EITHER OBJECTION APPLIED

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Lyons v. Lyons, ___ So. 3d ___, 40 Fla. L. Weekly D383 (Fla. 4th DCA February 11, 2015)

During litigation among the members of a family trust, a notice of production from nonparty was served upon the accountant for the trust. The petitioners objected to the notice based upon privilege, overbreadth, and irrelevance. Although the petitioners contended that their … Click To Read Full Case Law Review...

ESTATES: TRUSTS: CIVIL PROCEDURE: PERSONAL JURISDICTION: WAIVER: DEFENDANTS DID NOT WAIVE THEIR OBJECTION TO PERSONAL JURISDICTION BY FILING A MOTION TO DISMISS BASED UPON THE STATUTE OF LIMITATIONS AND LACHES BECAUSE THE DEFENDANTS AMENDED THEIR MOTION BEFORE IT WAS HEARD TO ASSERT THE DEFENSE OF LACK OF PERSONAL JURISDICTION: DEFENDANTS DID NOT VOLUNTARILY SUBMIT TO THE JURISDICTION OF THE COURT OR SEEK AFFIRMATIVE RELIEF BY FILING NOTICE OF THEIR INTENT TO USE TRUST FUNDS TO PAY ATTORNEY’S FEES OR BY RESPONDING TWICE TO DISCOVERY ON THE MERITS OF THE CASE

Case Decision Date: Reviewed by

Snider v. Metcalfe, ___ So. 3d ___, 40 Fla. L. Weekly D339 (Fla. 4th DCA February 4, 2015.

The plaintiff was a beneficiary under three trusts created by his deceased father’s will.  He sued the co-trustees for breach of fiduciary duty and breach of trust.  Initially, the defendants moved to dismiss based upon the statute of limitations and laches.  Two … Click To Read Full Case Law Review...