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Trust litigation

What constitutes a breach of fiduciary duty?

By Estate Planning, Probate

A fiduciary is an individual who has a duty to act in the best interests of another. There are many kinds of fiduciary relationships, but some of the most common are guardian-ward relationships, trustee-beneficiary relationships, and agent-principal relationships.

There is no one method by which a fiduciary duty may arise: certainly, a fiduciary relationship may be established explicitly, by contract, for example. But a fiduciary relationship can also be legally binding if it is established implicitly, without formal documents. Court cases surrounding breaches of fiduciary duties often hinge on the question of whether there existed a fiduciary relationship to have been breached in the first place.

With a Trust, the trustee acts as the fiduciary to the beneficiaries of the Trust, whereas in a probate, the personal representative of the estate acts as the fiduciary to the heirs of the estate. If you are Personal Representative or Trustee and are being accused of breaching your fiduciary duties, contact the trust and estate litigators of Bach, Jacobs & Byrne, P.A. to discuss your defense. Call us at (941) 906-1231 to set up a consultation.

May 2, 2019
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What constitutes undue influence in a Will or Trust contest?

By Estate Planning, Probate

The Florida Supreme Court case which has set the standard for determining undue influence in Will disputes is the seminal case of In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), which held that: “It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

In terms of proving that that a beneficiary was active in procuring the Will, the Carpenter court lists seven criteria which may be used in doing so:

  1. The beneficiary was present at the execution of the Will
  2. The beneficiary was present on occasions when the testator expressed a desire to make a Will
  3. The beneficiary recommended that an attorney draw the Will
  4. The beneficiary knew the contents of the Will prior to execution
  5. The beneficiary gave preparation instructions to the attorney drawing the Will
  6. The beneficiary secured the witnesses to the Will
  7. The beneficiary kept the Will in his/her possession after execution

The attorneys at Bach, Jacobs & Byrne, P.A. are trained Trust and estate litigators and elder law attorneys. If you think the Will or Trust of a loved one has been impacted by undue influence, call us today at (941) 906-1231 to set up an appointment to discuss your case.

January 18, 2019
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When can trust and estate litigation occur?

By Guardianship, Probate

Though most matters in probate court go unchallenged, certain situations can arise which necessitate probate, trust, or guardianship litigation. Some common such scenarios include, but are not limited to, the following:

-A will is challenged due to a question of the competence of the testator

-There is a dispute over the way a will/trust is worded or structured

-The installation of a guardianship is being contested

-A trustee is attempting to modify or terminate a trust

-A beneficiary is suing a fiduciary for a breach of their duty in administering the probate or trust

If you are in a situation involving probate, trust, or guardianship litigation, call the lawyers at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment to discuss your options.

November 19, 2018
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