Amendment of Petitions In Contested Probate Proceedings

By: Brandan J. Pratt, Esq., CFP® and Jennifer L. Fox, Esq.

In Winslow v. Deck, 225 So. 3d 276 (4th DCA 2017), the issue presented to the appellate court was whether the trial court erred in dismissing appellant’s counter-petition for administration on the grounds that appellant failed to properly request relief to revoke a prior will admitted to probate within three months of receiving a notice of administration of the Decedent’s estate. Section 733.212(3), Florida Statute, provides in pertinent part that “any interested person on whom a copy of the notice of administration is served must object to the validity of the will…by filing a petition or other pleading requesting relief… on or before the date that is 3 months after the date of service… or those objections are forever barred.” Section 733.208, Florida Statute, provides that “on the discovery of a later will or codicil, any interested person may petition to revoke the probate of a prior will or probate a later will.”

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Determining Reasonableness Of Attorney’s Fees And Costs In Probate And Trust Proceedings

By Brandan J. Pratt, Esq., CFP® and Jennifer L. Fox, Esq.

Motions to determine entitlement and amount of attorney’s fees almost always follow the completion of a trial in trust and estate disputes. There are many articles written about entitlement to attorney’s fees. However, determining entitlement to attorney’s fees is only half the battle. Under Section 733.6175 of the Florida Probate Code, the personal representative has the burden to prove that the attorney’s fees are related to probate and are reasonable. Specifically, Section 733.6175(3) provides that the personal representative has the burden of proof regarding the propriety of the employment of any person that the personal representative employs and the reasonableness of their compensation. In the trust context, Section 736.0206(3) puts the burden of proof of the propriety of the employment and the reasonableness of the compensation on the trustee.

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Legal Standards for Testamentary Capacity

By Brandan J. Pratt, Esq., CFP

Florida is home to a large population of retirees, and people are living longer and longer. Many people live well into their late 80’s and 90’s. There is a correlation between age and dementia. Therefore, there is a good chance that someone who wants to sign estate planning documents in their late 80’s or 90’s has some degree of dementia. It can be confusing as to whether someone who has dementia, has the requisite mental capacity to sign estate planning documents. This is known as “testamentary capacity”. In Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. Dist. Ct. App. 3d Dist. 1997), the Third District Court of Appeal established the standards for a determination of “testamentary capacity” and explained the idea of having a “lucid interval.”

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