Monday, May 30, 2022

Article: Increase Your Toolbox: Lesser-Known Sanctions in Probate and Trust Litigation

Jani Mauer recently published an article entitled, Increase Your Toolbox: Lesser-Known Sanctions in Probate and Trust Litigation, Quinnipiac Probate Law Journal, 2022. Provided below is an abstract of the Article:

You represent a petitioner seeking appointment as a personal representative or a court appointed personal representative. An Objection to the Petition for Administration or a Petition to Revoke Probate is filed. Your client insists that the assertions of the opposing party are false, unfounded, or otherwise lack merit. Or perhaps you represent an interested party who is horrified that a certain will or codicil is offered for or admitted to probate or is appalled by the actions or inactions of a personal representative. Disputes may arise in estate administration about a creditor’s rights, a beneficiary’s rights, or other matters.

Similarly, unjustified litigation may be filed against the trustee of a trust, or defenses lacking merit may be asserted in litigation instituted by a trustee. Irrespective of the identity of your client, he or she will typically not want to bear the ultimate burden of legal fees. Where the client is the personal representative, he will likely oppose the estate being diminished by payment of legal fees. Even if the personal representative is not a beneficiary of the estate, his fiduciary obligations require him to preserve the estate assets for the beneficiaries, causing resistance to paying attorney’s fees. Similarly, a trustee owes a duty to beneficiaries to preserve trust assets and to protect them from depletion by unnecessary litigation. Clients seek a remedy either to prevent the adverse party’s perceived wrongful conduct, or to recover legal fees and expenses caused by that conduct in estate and trust administration and litigation. Volumes have been written about payment or recovery of legal fees in the probate or trust context under Florida Statutes sections 732.2145(2)(b), 733.106, 733.609, 733.612(19), 733.3101(3), 733.6171, 733.6175, 736.0206, and 736.1004 to 736.1007. The statutes expressly authorizing liability, payment, or imposition of fees are thus not addressed in this Article. In some cases, it may be appropriate to seek imposition of fees on the wrongdoer under Florida Statutes section 57.105 or to pursue other remedies.

Part I of this Article explores when attorney’s fees and costs are likely to be awarded under Florida Statutes section 57.105 in trust and estate administration and litigation; what actions counsel might take in handling estate disputes to protect both counsel and the client from liability under Florida Statutes section 57.105; and actions recommended or required if sanctions are sought to be imposed under that statute. Legal fees may be recoverable in probate under statutes other than Florida Statutes section 57.105, or under common law, or other rules.1 Accordingly, this Article also considers coordination of a request for an attorney’s fee award under section 57.105 and other laws. Part II of this Article addresses the inequitable conduct doctrine as an alternative to Florida Statutes section 57.105 to recover legal fees and costs as a sanction. Part III of this Article examines the vexatious litigant in the probate and trust context.

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