The best point made in this rather humorous post on the Florida Probate Litigation Blog is that we shouldn’t need an appellate opinion to tell us this but now we’ve got one (in Florida anyways).
Forman v. State Dept. of Children & Families, 2007 WL 601628 (Fla. 4th DCA Feb 28, 2007)
Sara Leftow has filed a brief on behalf of her mother. It appears that Ms. Leftow is acting under a power of attorney to proceed on her mother’s behalf. Ms. Leftow’s brief raises valid points of concern.
However, pleadings filed by a non-lawyer on behalf of another are a nullity. See Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040, 1043 (Fla.2000). The same rule applies to briefs filed in this court. Ms. Leftow’s power of attorney to act on her mother’s behalf authorizes her to act as her mother’s agent, not as her mother’s attorney at law. See Hodges v. Surratt, 366 So.2d 768, 773 (Fla. 4th DCA 1979); Pryor v. King, 485 So.2d 28, 29 (Fla. 1st DCA 1986) (holding that trial court was correct in not allowing appellant’s wife, who was armed with appellant’s power of attorney, to represent him in a quiet title action).
The Florida rule declaring a non-lawyer’s pleadings filed on behalf of another to be a nullity is the product of the state’s policy against the unauthorized practice of law. See Torrey, 769 So.2d at 1043.
Thanks for this Juan – sometimes it is good to review the basics.
Tweet This Post
The New York Times this morning details some of the charitable bequests found in Mrs. Astor’s will and its various codicils.
A close review of the will and three amendments to it reveals who is designated to get what from Mrs. Astor’s personal fortune, valued at about $130 million, and a trust estimated to be worth more than $60 million that was left for her by her late husband, Vincent Astor.
Her son, Anthony, gets the bulk of her vast and storied fortune, from artwork by the Italian painter Giovanni Battista Tiepolo to the cash from the eventual sale of her Park Avenue duplex and her 65-acre Westchester estate.
Her daughter-in-law Charlene receives two fur coats — a mink and a chinchilla — and a necklace adorned with 367 round diamonds, while her twin grandsons are to be given $1 million each.
Then there are the New York City public school teachers — who have yet to be selected — who will benefit from a $2 million endowment allowing them to make trips abroad. Even an azalea garden on the Maine coast is down for $100,000.
Its unclear at this point which codicils of the two or three were forged and which, if any, were signed as a result of undue influence.
From Wikipedia:
Brooke Astor (born March 30, 1902) is an American socialite and philanthropist who was the chairwoman of the Vincent Astor Foundation, which had been established by her third husband. She also is a novelist and has written two volumes of memoirs.
[...]
On July 26, 2006, the New York Daily News ran a front-page cover story on the family feud between Astor's son, Anthony Dryden Marshall, and her grandson Philip Cryan Marshall, regarding to the welfare of the centenarian Astor, now 105 years old. The story details how Astor's grandson, a historic preservationist and associate professor at Roger Williams University, has filed a lawsuit seeking the removal of his father as the socialite's guardian and the appointment of Annette de la Renta, the wife of designer Oscar de la Renta, instead.
According to accounts published in The New York Times and the New York Daily News, Astor was diagnosed with Alzheimer's Disease several years ago and suffers from anemia, among other ailments. The lawsuit alleges that Marshall has not provided for his elderly mother and, instead, he has allowed her to live in squalor and that he has cut back on necessary medication and doctor's visits, while enriching himself with income from her estate. Philip Marshall further charged that his father sold his grandmother's favorite Childe Hassam painting without her knowledge and with no record as to the whereabouts of the funds received from the sale. The painting, "Flags, Fifth Avenue" (1918), is now in the collection of the Dallas Museum of Art. In addition to Annette de la Renta, Henry Kissinger and David Rockefeller have provided affidavits supporting Philip Marshall's requests for a change in guardianship.
The day the story appeared, New York Supreme Court Justice John Stackhouse sealed the documents pertaining to the lawsuit and granted an order appointing Annette de la Renta guardian and JPMorgan Chase & Co. to be in charge of Astor's finances, according to news reports. Several news organizations, including Associated Press and The New York Times, have sued to have the records of the Astor case unsealed in the public interest, claiming that there is no legal basis for the sealing of the records. Both actions are pending a hearing scheduled for 8 August 2006. In the interim, Astor was moved to Lenox Hill Hospital, where an unidentified nurse called her appearance "deplorable"; according to the New York Daily News, Anthony Marshall unsuccessfully attempted to have his mother transferred to another hospital.
Astor was released from Lenox Hill Hospital on 29 July 2006 and moved to Holly Hill, her 75-acre estate in the village of Briarcliff Manor, New York.
On 1 August 2006, The New York Times reported that Anthony Marshall was accused by Alice Perdue, who was employed in his mother's business office, of diverting nearly $1 million from his ailing mother's personal checking accounts into theatrical productions. Marshall, through a spokesman, said that Astor knew of the investments and approved of them. Perdue countered that Marshall had advised her never to send to his mother any documents of a financial nature because "she didn't understand it."
Tweet This Post
Florida’s New Trust Code is effect July 1, 2007.
The Florida Probate Litigation Blog has compiled links to a few good resources:
Final Committee Draft of FTC. Contains cross references to all corresponding Uniform Trust Code provisions. UTC commentary should be helpful in the absence of Florida appellate opinions.
Prof. Powell’s two Florida Bar Journal Articles explaining the new FTC (see here and here).
Prof. Powell’s Scrivener’s Summary of the FTC. The PDF version of this excellent resource has been removed from the web. You can get a clean copy of this document by ordering the Florida Bar CLE materials covering the new FTC (see here).
UTC Reporter’s Summary of FTC.
Tweet This Post
As reported here by Joel A. Schoenmeyer (of the Death & Taxes Blog) the IRS is proposing amendments to the regulations relating to the amount deductible from a decedent’s gross estate for claims against the estate.
Background as given by the IRS:
The amount an estate may deduct for claims against the estate has been a highly litigious issue. Unlike section 2031, section 2053(a) does not contain a specific directive to value a deductible claim at its date of death value. Section 2053, in fact, specifically contemplates expenses such as funeral and administration expenses, which are only determinable after the decedent’s date of death. Although numerous courts have addressed section 2053(a)(3), there is little or no consistency among the conclusions of those courts with regard to the extent (if any) to which post-death events are to be considered in valuing such claims.
[...]
After carefully considering the numerous judicial decisions and the analysis and conclusion in each, the legislative history of section 2053 and its predecessors, and the various possible alternatives, and in order to further the goal of the effective and fair administration of the tax laws, the proposed regulations adopt rules based on the premise that an estate may deduct under section 2053(a)(3) only amounts actually paid in settlement of claims against the estate. If the resolution of a contested or contingent claim cannot be reached prior to the expiration of the period of limitations for claims for refund, the estate may file a protective claim for refund to preserve its right to claim a deduction under section 2053(a).
Tweet This Post
Ralph Calhoun Brashier (Cecil C. Humphreys Professor of Law, University of Memphis Law School) has recently published his article entitled Half-Bloods, Inheritance, and Family, 37 U. Mem. L. Rev. 215 (2007).
Professor Beyer gives us his conclusion:
Into the twentieth century, states retained inheritance laws excluding half-blood relatives in all or many instances. Some of these laws were merely antiquated property rules having nothing to do with the presumed intent of the decedent. By mid-twentieth century, most states had rejected these exclusionary approaches. Most states decided instead to treat half-blood relatives the same as whole-bloods. The UPC adopted this approach without comment several decades ago.
In recent decades, however, the continuing evolution of American family life has had a significant impact upon half-blood relationships. As more individuals procreate with different partners, more half-sibling relationships arise in society. Today, many half-blood relatives do not consider each other family. Many half-blood relationships are bitter and vicious; others involve no enmity, but also no interaction. Heir hunters and DNA tests now prove half-blood connections that neither the decedent nor his heirs presumptive had suspected. Taking advantage of the UPC approach, half-blood relatives have walked away with all or a substantial part of a decedent’s estate at the expense of those individuals the decedent had reasonably believed to be his closest relatives.
Survey responses concerning the proper treatment of half-blood siblings suggest the inadequacy of the UPC’s extreme position. One alternative is a statute permitting different distributions based on the decedent’s family structure and circumstances. A limited-objective statute might begin with a presumption of exclusion. The half-blood relative could rebut the presumption by establishing statutorily-defined factors indicating the decedent’s probable wish to include her. A second alternative, which departs substantially from traditional intestate schemes, is a statute granting judges significant discretion on the question of half-blood inclusion.
If lawmakers are unwilling to move beyond existing fixed-rule approaches for half-blood survivors, then they should look to the compromise fixed-rule approaches. These approaches are easy to apply and give predictable results. They include the half-blood relative in the estate distribution but give the whole-blood relative a larger portion. With all-or-nothing fixed-rule approaches completely thwarting the probable wishes of many decedents in modern families, the compromise approaches are the best of the fixed-rule solutions.
Thanks Professor(s)!
Tweet This Post
Published on
June 23, 2007 in
Links.
Substance & Forum is a new website for publishing and accessing free articles authored by prominent tax and estate planning professionals offered to ACTEC Fellows and attorneys listed as the best in the country. Both groups are welcome to publish new or previously published articles on the public home page and use private sections of the site.
It appears new (I just heard of it) and there isn’t much up there yet but in time I’m sure this will become one of my more frequently visited sites.
Tweet This Post
[As seen on the Wills, Trusts & Estates Prof Blog]
The American Bar Association Section of Real Property, Probate and Trust Law and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on July 10, 2007 entitled Estate Planning and Cohabitation Agreements for Unmarried Couples.
Here is description of the program:
Since most legal standards are based on the marital contract, unmarried couples, same sex or otherwise, are not afforded the same rights and protections as married couples. From such issues as employee benefits and housing rights, to the challenge of just having a relationship recognized, unmarried couples face an uphill battle.
The increase in unmarried couples makes it more likely that estate planners will represent one or both partners. What challenges/problems face this growing aspect of the population? Which estate planning strategies are most suitable for such clients? How can domestic partners provide for one another contractually in the event of death or break-up? Learn how to resolve these issues and better serve your clients.
Topics will include:
Differences and similarities between planning for married and unmarried couples
Cohabitation agreements (with sample form)
Estate planning for unmarried couples
Grantor Retained Income Trusts
Family Limited Partnerships
Charitable Remainder Trusts
End-of-life directives
Tweet This Post
[As reported on /.]
“A Washington woman sued by the RIAA has asked the Court to award her attorneys fees, after the record company plaintiffs (Interscope Records, Capitol Records, SONY BMG, Atlantic Recording, BMG Music, and Virgin Records) dropped their case against her after two years of litigation, in Interscope v. Leadbetter. The brief submitted by her attorneys (pdf) pointed out the similarity between Ms. Leadbetter’s case and Capitol v. Foster. In the Leadbetter case, as well as Foster case, the RIAA sued the woman solely because she had paid for an internet access account, and then later in the case attempted to plead ‘secondary liability’ against her without any factual basis for doing so. This tactic had been repudiated by Judge Lee R. West in Capitol v. Foster as ‘marginal’ and ‘untested’ in his initial decision awarding attorneys fees, and in his later decision denying the RIAA’s motion for reconsideration.”
I previously posted on Capitol v. Foster here.
Tweet This Post
This was the intriguing question posed by The Florida Probate Litigation Blog in this post.
The death certificate is such a mundane part of the genesis of all probated estates that I never stopped to consider the weight of its contents in a contested case.
In [the below-described case] a death certificate was used to obtain a summary judgment ruling disposing of a wrongful death claim. The trial court was reversed on appeal based on the following black letter Florida law:
In granting summary judgment, the trial judge apparently gave conclusive effect to the death certificate and disregarded the opinion of Appellants’ expert. This was error. A death certificate is prima facie proof of the “fact, place, date, and time of death as well as the identity of the decedent.†§ 731.103(2), Fla. Stat. (2007). It does not constitute prima facie proof of the cause of death, nor does it create conclusive proof of any fact related to the death. As it relates to the cause of death, it simply states the ultimate opinion of the attesting physician. When, as here, a conflicting medical opinion on causation is offered, summary judgment is not appropriate.
Death certificates may be necessary to your case, but they are rarely sufficient to get the job done in contested proceedings.
Interesting facts, and possibly good advice… I’m looking into the state of the law in Ohio on this one and I’ll let you know what I find.
Tweet This Post
Most estate planners offer a package deal when doing estate plans… You don’t just get get your wills and trust(s) but its prudent to also include documents pertinent to disability planning , e.g. durable general powers of attorney, durable health care powers of attorney, living wills and maybe documents that pertain to the disposition of one’s remains.
And while the wills and trusts, take of most of the drafter’s time, skill and attention, being lazy about the “simple” stuff (i.e. general powers) can be extremely dangerous… Especially where those general powers often give spouses certain rights to re-title property and make decisions about gifting.
This is especially important where clients are currently not in their first marriages and may have brought children to the current marriage. Where one spouse may want to leave certain property to children from a prior marriage, the careful drafter must be cognizant of the fact that, if that spouse dies first, the powers they may have granted their new spouse during their life may grant him/her the power to completely undo those gifts to earlier-born children even if those gifts come from “non-probate” property.
Tweet This Post
