For those that don’t practice in or aren’t familiar with the nuances of attorney-client privilege in the area of trusts and estates, it may come as a shock to find that an otherwise properly preserved attorney-client privilege protection can simply be swept away by the court if questions arise regarding the will after the client has passed.
In the case of Vasallo v. Bean, the Third District outlined a clear history of legal precedent which sets forth the policy rationale for its holding; that an attorney cannot maintain a claim of attorney-client privilege (as is otherwise his or her duty under the rules of ethics) in the face of questions regarding the intent of the client in making a will when there is a dispute about that will after her death. 41 Fla. L. Weekly D2407 (Fla. 3d DCA October 26, 2016).
In Vasallo, a mother of five disinherited four of her five children in a will drafted just one year after she had a previous will drafted (the previous will included all five children as beneficiaries). Not surprisingly, the four left out took issue with the fifth—now sole beneficiary—and the mother’s new will. The attorney for the mother valiantly attempted under attorney-client privilege to avoid answering questions about the mother’s wishes and motives in requesting the change, but was ordered to provide the answers and reveal his confidential communications with his deceased client. As may have been a surprise to the attorney, the Court noted apparently long-standing rule of law that “[a]n attorney's testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged.” Vasallo v. Bean, 41 Fla. L. Weekly D2407 (Fla. 3d DCA October 26, 2016) quoting In re Estate of Marden, 355 So. 2d 121, 127 (Fla. 3d DCA 1978).
This is an important caveat to the normally confidential environment of the attorneys’ office that should be made clear to clients by practitioners and should be recalled by clients wanting to make a will—that the client’s statements about her intentions could be brought to light after her death.
A recent appellate decision from the Fourth DCA on a case out of Broward County (In RE Estate of Sharonda Renae Butler) reminds us of the small details that can sometimes get forgotten when preparing an estate and which can cause significant issues when it comes time to manage an estate.
Some may assume it to be common sense that a person would not want to appoint a person that has been convicted of a felony to manage estate assets. However, sometimes family circumstances dictate otherwise and, as the Fourth DCA makes clear, there is little wiggle room no matter how long before the appointment the felony was adjudicated and no matter the type of offense.
Even where a felony conviction might not bear any indication of untrustworthiness on its own, any family member with a stain in their past will be unable to serve as a decedent's personal representative. While this rule may not affect many considering estate planning, it is indicative of the many pitfalls that await the unwary who attempt to use simple "one size fits all" forms on the internet or borrowing the wills of friends or family to use as a form for their own.
There are a great many ways an estate can end up bogged down in litigation or procedural issues. Talk to a qualified trusts and estates attorney with Icard Merrill today and we can help you avoid issues like this.
A Palm Beach County man who was a beneficiary under an amended trust established by his father challenged the trust’s validity and faced potential dismissal of his suit for failure to return money given to him by the trustee, his father’s surviving wife. Gossett v. Gossett, 182 So. 3d 694, 695 (Fla. 4th DCA 2015).
This case illustrates a principle of law dating back in this country to a New Hampshire case from 1833 which imported the law from English ecclesiastical court rulings. The principle is referred to as the “renunciation rule,” which holds generally that a recipient of a benefit through a trust must “do equity” by returning the benefit and renouncing that recipient’s interest before he or she can be permitted by a court to challenge the validity of the trust (i.e., a person cannot keep and enjoy the benefits of a trust that he or she seeks to invalidate).
In Gossett, the son received the benefits originally while in financial duress and was unable to return them prior to initiating the case to overturn the amended trust (actually, the fourth and fifth amended versions). However, he argued—and the court agreed—that, since he was entitled to that amount (or more) under the versions of the trust he believed were valid, he did not have to return the funds.
In reaching its decision, the Fourth DCA reasoned that the son’s situation in Gossett was similar to that of a self-settled trust, whereby the interest in the money that was not being ‘renounced’ derived not from the trust itself, but from the settlor’s ownership of the assets and the fact that he was the sole beneficiary (a commonly invalidated trust arrangement). Potentially strained logic aside, the court found that, regardless of which version of the amended trust was upheld (everyone agreed that at least some version was valid), the son was entitled to the money and, therefore, should not have to return the funds. This finding represented a potential departure from over two hundred years of precedent on this issue.
As the Gossett case illustrates, trusts and estate planning can be convoluted and confusing to those without the training and experience to navigate the process. Inconsistency and lack of clarity can cause strife that potentially rips families apart after a loved one passes. It is crucial to get sound advice from a trusted counselor who can help establish a clear and enforceable estate plan. Talk to our trusted estate planning attorneys at Icard Merrill today to find out more.