Life is messy even when it is good. Traumatic injuries from accidents can incapacitate adults and minors to varying to degrees. When a minor is incapacitated the minor’s mother and father are the custodians of the person and property. If the child’s property is valued over $15,000.00 from any traumatic event then a guardianship of the property will be required which still can be the parents or parent.

744.441 Powers of guardian upon court approval. — After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may:………

(2) Execute, exercise, or release any powers as trustee, personal representative, custodian for minors, conservator, or donee of any power of appointment or other power that the ward might have lawfully exercised, consummated, or executed if not incapacitated, if the best interest of the ward requires such execution, exercise, or release.

The guardianship in Florida takes away the ward’s rights and vests those rights in the guardianship which is approved by the Judge. The guardian is then able to do the things the ward is no longer permitted to do because of the appointment of a guardian for the person or the property or for both.

In one Florida case, Lisa Rene appeals from an order in a guardianship proceeding authorizing Janie Sykes-Kennedy, the court-appointed guardian for Lillie S. White, to amend White’s 2006 revocable trust to appoint herself (Sykes-Kennedy) as trustee. The trust document had provided for Rene, White’s granddaughter, to become trustee in the event White became incapacitated. On appeal, Renee contends, inter alia, that the guardianship court lacked the authority to enter the challenged order and that the order was not in the ward’s best interest. We affirm.

In June 2013, the trial court found that White was incapacitated due to senile dementia and appointed her sister, Janie Sykes-Kennedy, to be her limited guardian. The trial court determined that White was incapable, among other things, of exercising her right to contract, to sue and defend lawsuits, to manage property, to make any gift or disposition of property, to consent to medical treatment, or to make decisions about her social environment or other social aspects of her life.

In August 2013, Sykes-Kennedy filed a petition in the guardianship proceeding requesting that the trial court authorize her, as White’s guardian, to amend the 2006 revocable trust so as to appoint herself as trustee. In her petition, Sykes-Kennedy alleged that it was necessary for the guardian to be able to access assets in the 2006 trust in order to provide care for White and, additionally, that White had “expressed continued worry” that her property was being controlled by Rene.

At the conclusion of an evidentiary hearing, the trial court granted Sykes-Kennedy’s petition, finding that the ward’s best interests would be served by having Sykes-Kennedy appointed trustee. Although Sykes-Kennedy was authorized by the trial court to amend the 2006 revocable trust to appoint herself as trustee, she was prohibited from amending the trust in any other manner. Furthermore, the trial court made an express finding that there was no evidence of wrongdoing by Rene.

Rene argues that the guardianship court did not have the authority to enter an order approving an amendment to White’s revocable trust because section 736.0201(l), Florida Statutes (2013) states that “judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure.” We reject Rene’s argument because Florida’s Trust Code provides elsewhere that, in accordance with section 744.441, a guardian of the property of the settlor may exercise a settlor’s power to amend a trust. See § 736.0602(6), Fla. Stat. (2013) (“A guardian of the property of the settlor may exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only as provided in section 744.441.”).

Section 744.441, Florida Statutes (2013) sets forth the powers that a guardian may exercise with court approval. Among these powers is the authority to exercise any power as trustee that the ward might have lawfully exercised if not incapacitated, if the best interest of the ward requires such action. See § 744.441(2), Fla. Stat. (2013);1 see also In re Guardianship of Muller, 650 So. 2d 698 (Fla. 4th DCA 1995) (holding that section 744.441(2) authorized exercise of ward’s power to amend trust to appoint new trustee).

Here, if not incapacitated, White had the power to amend her trust and appoint Sykes-Kennedy as the new trustee. Furthermore, given the evidence regarding Sykes-Kennedy’s education, business experience, and relationship with the ward, we have no difficulty concluding that there was substantial, competent evidence to support the trial court’s determination that it was in the ward’s best interest to have Sykes-Kennedy replace Rene as trustee.

This case involves a Home Owner’s Association which will enforce any lien for dues or any expense against the homeowner’s property by forcing the sale of the property to get the money owed to the HOA by selling the property owner’s property at foreclosure.

This case is significant in the general because of the defendant’s attempt to secure “constructive service” by publication over the homeowner in order to go forward with the legal proceedings when the “knowledge of the whereabouts of the homeowner were available to the Defendant.

In February 2010, the HOA filed a foreclosure complaint to enforce and foreclose a claim of lien in regard to Martins’ failure to pay maintenance assessments. A letter enclosing the claim of lien was addressed to Martins and mailed to the subject property. A service processor attempted to serve Martins at the subject property, but found that the house was unfurnished and the power was off. A neighbor reported that the owner is there now and then. Thereafter, the HOA’s counsel filed an affidavit for service by publication, alleging:

a) I sent a Demand letter to the last known address of 2119 The Oaks Boulevard, Kissimmee, FL 34746. No response was received from the defendant.

b) I hired a process server at Magic Process to serve summons on Defendants, Sergio Martins and Unknown Spouse of Sergio Martins. Process Server stated that the property was unoccupied at the time of service.

c) I have searched for the Defendant with the Osceola County Property Appraisers office to determine if there are other properties the Defendant may own and or reside in. I have found no other property owned by Sergio Martins and Unknown Spouse of Sergio Martins

d) I have searched for the Defendant by name and by address in a popular background database search service known as Accurint.com. We have not found another address aside from the aforementioned addresses at which the Process Server attempted service on the Defendants.

e) I have searched for the Defendants by name using World Wide Web based telephone listings. I have found no listing.

f) I have sent the U.S. Post Office a change of address/physical address request and they reported that they had no forwarding information for Defendant.

g) I have searched the Florida Department of Corrections on them to see if they had been incarcerated.

h) I have searched the Osceola County Inmate Records on them to see if they have been incarcerated.

i) I have searched Clerks website of Osceola County, Florida. I found the Deed that was recorded for subject property when they purchased the property. The address on the Deed is 2119 The Oaks Blvd., Kissimmee, FL 34746. There is no recorded mortgage on this property.

2. The age of the Defendant is unknown to Affiant.

3. The residence of the Defendant is unknown to Affiant.

4. The Defendant, having residence in Florida, has been absent from there for more than 60 days prior to the making of this affidavit, or conceals him/herself so that process cannot be served personally upon him/her, and that Affiant believes that there is no person in the state upon whom service of process would bind this absent or concealed Defendant.

Notice was published in the Heritage Florida Jewish News in the issues of March 18 and 25, 2011. Subsequently, the clerk granted the HOA’s motion for default, and a summary final judgment followed, directing that the property be sold at public auction to satisfy the HOA’s claim of lien. The property was then sold at public auction to an uninterested third party.

Although Martins owned the Osceola County property, he has resided in Cutler Bay, Florida since 2005. He purchased the property for his grandmother who moved out in 2006, and relocated to Georgia with her sister, Martins’ aunt. Since that time, his aunt checked on the property every other month, and had enlisted the help of a neighbor with yard work.

Martins’ aunt notified Martins of the foreclosure after the neighbor notified her that the locks had been changed and furniture had been removed.

Accordingly, Martins filed a motion to vacate final judgment, void sale of real property, vacate default, and quash service of process.\

Martins insisted that the HOA’s diligent search was insufficient because it did not search any public records other than Osceola County, did not search any voter registration records, did not search the Osceola County Tax Collector’s records, did not search the Florida Department of Motor Vehicles records regarding title, registration, or driver’s licenses, and did not talk to any of Martins’ neighbors or utility companies providing service to the property.

If the HOA had done so, it would have discovered that Martins’ driver’s license listed the Cutler Bay address as his address, Martins had several vehicles registered to his Cutler Bay address, and the Osceola County Tax Collector’s records for the subject property listed the Cutler Bay address as Martins’ address.

Martins further alleged that the HOA failed to examine its own business records to find that it had previously mailed correspondence to Martins at his Cutler Bay address. Indeed, in 2009 the HOA mailed a work order invoice for the subject property to Martins at the Cutler Bay address. In May 2010, the HOA’s counsel mailed Martins a letter to his Cutler Bay address informing him that it was attempting to collect a debt, and that if he was the owner of the subject property, to please contact the law firm. Martins denied that he ever received the letter. Even so, the HOA never attempted to serve Martins at the Cutler Bay address.We review the denial of a motion to vacate a final judgment for a gross abuse of discretion. Lewis

We conclude that not only was the HOA’s search insufficient, but the HOA’s affidavit is patently inaccurate in that it fails to disclose that the HOA was aware of Martins’ Cutler Bay address. Accordingly, we reverse the trial court’s order denying Martins’ motion to vacate final judgment, void sale of real property, vacate default, and quash service of process, find that the summary final judgment of foreclosure is void, and remand for proceedings consistent with this opinion. See Godsell, 923 So. 2d at 1215 (finding that final judgment of foreclosure was void where the constructive service on defendant was ineffective due to the plaintiff’s failure to do a diligent search and failure to include, inter alia, any reference to the defendant’s possible Canadian address); Miller, 31 So. 3d at 228 (finding that constructive service by publication was defective based on the fact that plaintiffs knew the defendant’s physical address, the defendant had previously been served twice at his known address, and the plaintiffs’ attorney had mailed correspondence to the defendant’s known address; and reversing final default judgment of partition); Gans v. Heathgate — Sunflower Homeowners Ass’n, Inc., 593 So. 2d 549, 551 (Fla. 4th DCA 1992) (finding that two unsuccessful service attempts were not sufficient to allow for service by publication where the plaintiff failed to ascertain the defendant’s whereabouts by talking to her neighbors, or trying to contact her by phone or by mail); Redfield, 990 So. 2d at 1138-39 (finding that plaintiff’s search fell below the statutory and constitutional requirements necessary to satisfy Florida’s service of process by publication law where plaintiff made some efforts to locate the defendant, but the sworn statement did not indicate that the plaintiff contacted the source that most likely could have provided information regarding the defendant); Floyd, 704 So. 2d at 1112 (finding that the affidavit omitted the most meaningful search, namely “getting out of the office, finding the property, inquiring of persons in possession of the property, or talking with neighbors, relatives or friends”).

REVERSED and REMANDED. (PALMER, LAWSON and BERGER, JJ., concur.)

__________________

1The plaintiff in Godsell was informed twice by the defendant’s neighbors that the defendant resided in Canada, but made no effort to obtain the defendant’s Canadian address. 923 So. 2d at 1210-11, 1215.

In life there are many times when the wife or a family member of a missing person is compelled to formalize a legal declaration of death of a person that has been missing dead for many financial reasons. There may be life insurance benefits which must be claimed or pension rights to determine beneficiaries. The petitioner must seek a Circuit Court Judge to enter a final order declaring that a person is now deceased even when there is no body recovered and identified.

In Florida there is a specific statute Section 731.103(3), Florida Statutes (2013), provides that::

A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. . . . A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile . . . .

Florida case law regarding the interpretation of this statute creates a presumption of death after the person has been absent for five years. Woods v. Estate of Woods, 681 So. 2d 903, 905 (Fla. 4th DCA 1996) (“At common law, upon the expiration of seven years’ unexplained absence, a presumption of death arose.” (citing Groover v. Simonhoff, 157 So. 2d 541 (Fla. 3d DCA 1963))). Section 731.103(3) “is merely a procedure by which the Legislature has provided a method to judicially establish the presumption of death which has already arisen by the passage of time.” Id. (citing Groover, 157 So. 2d at 543). In applying section 731.103(3), the standard of proof is “ ‘[whether] the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.’ ” Id. (alteration in original) (quoting Johns v. Burns, 67 So. 2d 765, 767 (Fla. 1953)).

In one Florida case Here, a petitioner filed a petition, explaining that his sister has been missing since December 24, 1974. Appellant advised the court that his sister left their home in Orlando to go to the neighborhood park, but that she never returned.

Their parents filed a missing person’s report with the Orlando Police Department. There was no indication that his sister would have run away from home and there is no record of her whereabouts. Due to the length of time that Mable Louise Andrews has been missing, there exists a presumption that she is deceased. See § 731.103(3), Fla. Stat. (2013). At a minimum, this person was entitled to an evidentiary hearing before denying the petition. Yet, in this case the probate judge denied the petition without conducting an evidentiary hearing allowing the petitioner to present evidence.

The appellate court reversed the lower trial judge and remanded the case to lower court to determine at an evidentiary hearing whether the petitioner was entitled to a declaration of death of his sister.

A judgment entered against a party for money will collect interest until the judgment is satisfied. Florida law states that the judgment is valid for 20 years.

The prevailing lawyer will now examine all of your real estate properties which you own including any which are owed jointly with any other person or entity. Anything of value such as stocks, bank accounts, cars, boats, motorcycles, etc., will be inventoried in order to see what assets can be seized and sold at auction.

If the judgment debtor is a business owner then the lawyer will issue non-party subpoenas to entities where there is a close link between the judgment debtor and these businesses. Many of the entities served with discovery subpoenas will attempt to object on various grounds including privacy protections under the Florida Constitution.

Judges who have to rule on the propriety of enforcing the discovery have to balance both the discovery request against any privacy interests of non-parties’ shareholders, officers, or directors and the apparent relevancy of the documents. Should the Judge always conduct an evidentiary hearing before enforcing the discovery?

In one Florida case, the Judge entered a discovery order requiring a non-party to produce records without conduction an evidentiary hearing. The other party appealed the discovery order being entered without a hearing. The appellate court held that the requested documents were relevant in the context of the postjudgment proceedings and that the trial court did not err in requiring their production. The appellate courttherefore affirmed the trial judge.

In 2012, William and Margaret Harrison, as trustees of the Margaret Harrison Living Trust, obtained a default judgment1 against two individuals: Arthur Bateman and Daniel Martin. After unsuccessfully attempting to recover on their judgment against Bateman, the Harrisons issued subpoenas duces tecum to Venetian in aid of execution of their judgment. These subpoenas were based on the Harrisons’ review of various public records which reflected that:

1. Bateman was a registered agent or president of various Venetian-related corporations and partnerships between 2004 and 2013;

2 Bateman also executed the mortgage for a property owned by one of the Venetian corporations, and as of 2012, he was still listed on property tax records as the owner of that same property;

3. A separate entity, San Marino Properties, LLC, was created in 2010, and that entity shared a managing member, Mr. Dana Bessette, with other Venetian-related corporations (in 2012, Bessette listed himself as president of 2245 Venetian Court Building 4, Inc.);

4. In 2012, Mr. Bessette provided the same mailing address for both 2245 Venetian Court Building 4, Inc., and San Marino Properties, LLC.

Venetian objected to the subpoenas and filed motions to quash. The Harrisons filed a memorandum in opposition to the motions to quash and attached the public records they relied on in serving their subpoenas. Ultimately, the trial court denied Venetian’s motions.

I. Relevance

Venetian first argues that the requested documents are not relevant as Venetian was a nonparty to the proceedings underlying the deficiency judgment and the subpoenas do not limit the requests for documents to items relating solely to Bateman, the judgment debtor. Venetian also points out that the requests are not related to any claim for malfeasance.

Relevance is indeed the “polestar” in a discovery request. See McDonald’s Rests. of Fla., Inc. v. Doe, 87 So. 3d 791, 793 (Fla. 2d DCA 2012). However, this court has repeatedly noted the distinction between prejudgment and postjudgment discovery.

In the prejudgment context, “a party is entitled only to the opponent’s financial records that pertain to the pending action.” Regions Bank v. MDG Frank Helmerich, LLC, 118 So. 3d 968, 969 (Fla. 2d DCA 2013).

“But in postjudgment discovery, the dispute in the original civil action has been resolved [and, therefore] [t]he matters relevant for discovery [are those] that will enable the judgment creditor to collect the debt.” Id.; see also Gen. Elec. Capital Corp. v. Nunziata, 124 So. 3d 940, 943 (Fla. 2d DCA 2013)

(“In the context of postjudgment discovery, matters relevant to the subject matter of the pending action or which would lead to the discovery of admissible evidence, per [Florida] Rule [of Civil Procedure] 1.280(b)(1), would encompass matters identifying or leading to the discovery of assets available for execution. . . .” (alteration in original) (internal quotation omitted)).

This means that in a postjudgment discovery context, “the creditor has the right to discover any assets the debtor might have that could be subject to levy or execution to satisfy the judgment, or assets that the debtor might have recently transferred.” MDG Frank Helmerich, LLC, 118 So. 3d at 970 (emphasis added).

Venetian argues that the broad postjudgment discovery rule does not apply here and that the Harrisons are merely on a “fishing expedition.” But while we agree that generally “discovery in aid of execution cannot be used to pry into the assets and business of persons other than the judgment debtor,” we have also held that a nonparty may be subject to postjudgment discovery where the “judgment creditor can provide a good reason and close link between the unrelated entity and the judgment debtor.” Gen. Elec. Capital Corp., 124 So. 3d at 942.

In General Electric Capital Corp., we granted certiorari and quashed an order permitting discovery against a nonparty. Id. at 943. Our decision was based on the facts that no judgment had been entered against the nonparty, the relationship between the nonparty and the judgment debtor had been remote even when in existence, and there was no relationship between the nonparty and the judgment debtor at the time of the discovery request. Id. at 942. Thus we concluded that the judgment creditor had “not laid the proper predicate” for the discovery requests.

Here, we conclude that the Harrisons have established more than just a remote link between Bateman and Venetian.

The public records relied upon by the Harrisons revealed that subsequent to Bateman’s default, Venetian engaged in at least one name change and the appointment of new corporate officers to one of the Venetian entities.

The records also revealed that Mr. Bessette was affiliated with at least three Venetian entities and that he provided the same mailing address for both 2245 Venetian Court Building 4, Inc., and San Marino Properties, LLC.

Although the link between Bateman and San Marino Properties, LLC, is not as strong as the link between Bateman and the other Venetian entities, judgment creditors are allowed “broad discovery into [a] debtor’s finances . . . even if the discovery concerns property jointly owned with others,” particularly where “there are indications that the debtor might have individual assets or might have recently transferred assets that would otherwise be available for levy.” Jim Appley’s Tru-Arc, Inc. v. Liquid Extraction Sys. Ltd. P’ship, 526 So. 2d 177, 179 (Fla. 2d DCA 1988).

Venetian points out that the Harrisons did not bring a separate claim for fraudulent transfer, but we do not think that fact is dispositive.

As we noted in General Electric Capital Corp., the requesting party must establish the proper predicate for purposes of serving discovery on a nonparty. 124 So. 3d at 943. However, we did not go so far as to require a claim for malfeasance against the nonjudgment debtor in the pleadings.

Rather, we determined that the requesting party must only provide a “good reason and close link” between the nonparty and judgment debtor. Id. at 942. We reject Venetian’s attempts to apply prejudgment discovery case law to this issue, and we conclude that the Harrisons established a “good reason and close link” between Bateman and Venetian, thereby entitling them to discovery of the requested documents.2 However, this does not end our analysis because Venetian raises alternative arguments relating to a constitutional right to privacy and the lack of an evidentiary hearing that we must address.

II. Constitutional Right to Privacy

Venetian contends that Article I, section 23 of the Florida Constitution provides a right of privacy that applies to financial records in the absence of a relevant and compelling reason to compel disclosure. Venetian also contends that it may assert this right on behalf of its shareholders, officers, and directors.

We note that ordinarily, corporations cannot raise the privacy rights of third parties unless they (the corporations) meet the third-party standing test enunciated in Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936 (Fla. 2002). However, even in the absence of third-party standing, where a corporation objects to a discovery request on the basis of relevancy, a “trial court can consider the constitutional rights of third parties who would be substantially affected by the outcome of the litigation.”

There is no issue of third-party standing here. Rather, the issue is one of relevancy. Clearly, the documents requested were relevant to the Harrisons’ attempt to discover any assets that Bateman had or that he had recently transferred in aid of execution of their judgment against him, especially where the Harrisons proffered a “good reason and close link” between Bateman and Venetian. Gen. Elec. Capital Corp., 124 So. 3d at 942. The case law on which Venetian relies is factually distinguishable.3 Thus we conclude that the discovery request here was not barred by any privacy interest of Venetian’s shareholders, officers, and directors.

III. Lack of an Evidentiary Hearing

Lastly, Venetian argues that the Harrisons were required to prove the relevancy of the requested documents at an evidentiary hearing. Venetian asserts that the trial court erred by relying on the Harrisons’ counsel’s unsworn statements and the documents they provided relating to Bateman’s link to Venetian.

We acknowledge that this court, as well as other Florida courts, have suggested that evidentiary hearings are necessary to determine the relevancy issue. See, e.g., Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101, 1103-04 (Fla. 2d DCA 2012); Spry v. Prof’l Emp’r Plans, 985 So. 2d 1187, 1188-89 (Fla. 1st DCA 2008). However, those cases involved the personal right to privacy which, as we have already explained, is not what is at issue here. Further, where relevancy is readily apparent — as it is in this case — at least one Florida court holds that an evidentiary hearing is not necessary. See Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1264 (Fla. 4th DCA 2013) (rejecting the argument that “a trial court must always conduct an evidentiary hearing before it may order financial discovery from a party” and holding that where the requested financial information was relevant to the issues as framed by the pleadings, trial court did not depart from the essential requirements of the law in ordering disclosure).4 We therefore hold that under the facts of this case, the trial court’s failure to conduct an evidentiary hearing prior to ordering the disclosure of the requested documents does not constitute reversible error.

IV. Conclusion

Because the relevancy of the requested documents to the Harrisons’ attempt to execute on their judgment is readily apparent, the trial court did not err in overruling Venetian’s objections and requiring the disclosure of the documents. We therefore affirm.

If you don’t have a will, the state where you reside will have the last say on who gets assets in your estate. If this occurs, the deceased just thought death was never going to ever knock on his or her door.

There is always something to litigate when there is a death from where the funeral will be to whether the body is to be buried or cremated. Is this going to be “open casket” or “closed casket ” funeral. You can’t expect people that did not get along in life to join arms in harmony when a funeral is being planned for a deceased relative. The same old people are doing the same old things to each other until its their turn in the casket.

Family members will even litigate the ownership of a web site or facebook site and .or digital folders. Technological advances have out-passed some laws that are on the books.

In one Florida case, the parents of a young man who passed and did not have a will were fighting over the cremated remains of the their son. While division of ashes among heirs by funeral homes may be a common practice where the heirs are in agreement as to the division, a decedent’s remains, including ashes, are not “property” subject to ownership or court-ordered partition. The court in this case, felt that when such a dispute arises it is a matter best left to the legislature to decide on what the law should be rather than the court system.

The twenty-three year old son, single and without children, died in a tragic automobile accident. He left no will and no written or verbal instructions for disposition of his body. His parents are co-personal representatives of their son’s estate, and the sole beneficiaries.

After their son’s death, the parents agreed to have his body cremated. They were unable, however, to agree on the final disposition of his ashes. The mother wanted to bury the son’s ashes in West Palm Beach, Florida. The father wanted to bury the son’s ashes in a family burial plot in Blue Ridge, Georgia. The parents were divorced before their son’s death.

The father petitioned the court to declare the ashes “property” to be partitioned under the probate code. This would allow each parent to dispose of half of the ashes as they desired. For religious reasons, the mother opposed having the ashes divided.

Specifically, the father requested the court to order that the ashes be divided into two containers, and the funeral be home directed to distribute the containers to the parties. After an evidentiary hearing, the trial court found that the ashes were not “property” subject to partition, and denied the father’s petition.

The historical basis for this thinking was derived in part from the English view that “the secular tribunals would protect the monument, the winding-sheet, the grave-clothes, even down to the ribbon (now extant) which tied the queue; but the Church would guard the skull and bones.” In re Widening of Beekman Street, 4 Bradf. 503, 522 app. (1856) (historical note on the law of burial by the Honorable Samuel B. Ruggles, Referee)

Fast forward to today. Our probate code defines “property” as “both real and personal property or any interest in it and anything that may be the subject of ownership.” § 731.201(32), Fla. Stat. (2012). That definition has existed since 1975. Yet, as our supreme court has articulated, “[a]ll authorities generally agree that the next of kin have no property right in the remains of a decedent.” State v. Powell, 497 So. 2d 1188, 1191 (Fla. 1986) (emphasis added). The supreme court clarified its position in Kirksey v. Jernigan “to be consistent with the majority view that the right [to the remains] is limited to ‘possession of the body . . . for the purpose of burial, sepulture or other lawful disposition . . . .’ ” Id. at 1191-92 (citing Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950)).

It reiterated its position again in 2001 in Crocker v. Pleasant, 778 So. 2d 978, 988 (Fla. 2001), acknowledging that “there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” But a claim of entitlement is not a property right, nor does it make the remains “property.”

Ashes are the decedent’s remains. Common law, our supreme court, and this Court have always held that a decedent’s remains are not property. See id.; see also Cohen v. Guardianship of Cohen, 896 So. 2d 950, 954 (Fla. 4th DCA 2005) (“a dead body is not properly viewable as property or assets”).

The father relied on In re Estate of K.A., 807 N.E.2d 748 (Ind. Ct. App. 2004), to support his request to partition the ashes. There, the child of a divorced couple was killed in an automobile accident. The mother and father agreed to cremate the child’s remains, but disagreed on the disposition of the ashes. Id. Like here, the father petitioned for an order equally dividing the ashes. After an evidentiary hearing, the trial court ordered that the ashes be divided, and the mother appealed. Id. The Indiana Court of Appeals affirmed, recognizing that “the practice of dividing the remains of a decedent among the survivors is common and acceptable in the funeral service industry” and “memento urns or keepsakes have been marketed to preserve divided ashes for surviving family members.”

We, however, find K.A. easily distinguishable both legally and factually. First, the court specifically stated that the “trial court did not find that the cremated remains of K.A. were subject to division between her heirs as inherited property.” And second, applying the “clearly erroneous” standard of review, the appellate court held the evidence supported the trial court’s finding that K.A. wanted her ashes divided and spread at different locations.

The mother and trial court relied instead on Kulp v. Kulp, 920 A.2d 867 (Pa. Super. Ct. 2007). There, a couple disagreed over who should keep their child’s cremated remains in a divorce proceeding. The trial court ordered that the ashes be divided evenly between the two parents, and the father appealed. Id. The appellate court reversed.

The issue is an extremely sensitive one. While the division of cremated remains may be common in the funeral industry and may be acceptable in many instances to the next of kin, in other cases, as in the case of Husband herein, the next of kin may believe that the division of cremated remains is offensive. The question thus presented is whether the trial court in the instant case abused its discretion in ordering the division of Son’s remains.

The appellate court held the trial court had “abused its discretion in using its equitable powers to override the desires of one of the next of kin as to the division of Son’s remains.”

We need not rely on either out-of-state case, but need only adhere to our own Florida precedent in declaring that the decedent’s remains are not “property.” In doing so, we adopt the words of Judge Warner in Cohen:

It is a sorrowful matter to have relatives disputing in court over the remains of the deceased. In this case in particular, there is no solution that will bring peace to all parties. We express our sympathies to both sides in their loss, which must be magnified by these proceedings. Cases such as this require the most sensitive exercise of the equitable powers of the trial courts. We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented.

Given the sensitive nature of the subject matter, and the fact that, historically, cremated remains have been treated the same as a body, neither constituting “property,” we decline to craft a policy at odds with our history and precedent. This is a matter best left to our legislature should it decide to address this sensitive policy issue.

Life is messy at best! Our society is mobile, transitory and the family structure has changed since the 1950’s.Today’s family units include natural born children, step-children, adopted children, and out of wed-lock children who may or may not have been provided for in the testator’s will. What if the testator doesn’t even know that he is the father of a child until after the will is executed?

A dictionary definition is any child who is inadvertently committed from a testator’s will.

In order to be a pretermitted child in Florida, there are three elements that must be satisfied for a child to be “pretermitted.”

The child must be: (1) omitted from the will,

(2) born or adopted after the making of the will, and

(3) have not received a part of the testator’s property equivalent to a child’s part by way of advancement. §732.302, Fla. Stat. (2010).

Section 732.302 specifically provides:

When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:

(1) It appears from the will that the omission was intentional; or

(2) The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.

The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with F.S. 733.805.

The terms of the statute appear very clear and understandable but this was not the case in one Florida case where the trial court’s decision was reversed by the appellate court.

This case arises out of the probate of the estate of James P. Maher, III, who disappeared in 2004. On August 3, 2009, the trial court entered an order on Petition for Order Declaring Death of Missing Person and a presumptive Death Certificate. Maher’s last will and testament dated July 11, 2001 was admitted to probate on December 1, 2009.

Lyudmila Taran, guardian of her son, P.M., a minor and beneficiary of the Estate of James P. Maher, III, appeals the trial court’s denial of her motion for summary judgment, wherein the trial court found that A.M.I., appellee Olga Valerievna Iglikova’s daughter, is a pretermitted child. We reverse because A.M.I. does not qualify as a pretermitted child because she was born before the execution of the decedent’s will.

The decedent fathered two children during his lifetime: P.M., the decedent’s son, of whom Taran is the legal guardian, born April 29, 1999; and A.M.I., Iglikova’s daughter, born on December 15, 2000.

The decedent did not become aware of A.M.I.’s existence until either June or July of 2002. A paternity test conducted in either late 2002 or early 2003 confirmed the decedent’s paternity of A.M.I.

The decedent thereafter made monthly child support payments to Iglikova for the benefit of A.M.I. These payments continued until the filing of the Petition for Administration on December 1, 2009. On August 10, 2005, a court order from the Commonwealth of Massachusetts directed that A.M.I.’s birth certificate be amended to reflect the decedent as the father.

On July 13, 2010, Iglikova filed a Petition to Determine Status as a Pretermitted Child, Challenge Construction of Will and Determine Beneficiaries.

Taran filed a motion for summary judgment, asserting that A.M.I. was not a pretermitted child under section 732.302, Florida Statutes (2010), because she was (1) not omitted from the will, as she was included in a class gift for “children surviving [the decedent],” and (2) she was not born or adopted after the decedent executed the will.

The trial court subsequently denied Taran’s motion for summary judgment and found A.M.I. to be a pretermitted child under the statute. The trial court subsequently denied Taran’s motion for summary judgment and found A.M.I. to be a pretermitted child under the statute.

Furthermore, under the plain and obvious meaning of the statute, A.M.I. is not a pretermitted child because she was born before the execution of the decedent’s will. Iglikova argues that an adjudication of paternity should be equated with an adoption that took place after the execution of the will.

We decline to adopt such a rationale, as the two are distinct. ” ‘Adoption’ means the act of creating the legal relationship between parent and child where it did not exist.” §63.032(3), Fla. Stat. (2010).

However, adjudication of paternity merely acknowledges an existing relationship. See e.g. Guerrero v. Staglish, 400 So. 2d 190, 191 (Fla. 1st DCA 1981).

In addition, it is not within the purview of this Court to expand the meaning of the statute when its language is clear and unambiguous. Accordingly, we hold that the trial court erred and reverse the summary judgment and remand to the trial court. Accordingly, we hold that the trial court erred when it denied Taran’s motion for summary judgment and determined A.M.I. is a pretermitted child.

In the present case the trial court’s decision was reversed and the case remanded.

Florida courts will attempt to enforce the intention of the testator as expressed in the will where the meaning of the words used by the testator is clear. The will seek to carry out the will of the deceased, whatever the inclination of the court may be.

The court may not alter or reconstruct a will according to its notion of what the testator would or should have done. Moreover, in the absence of clear legislative intent, the courts will not create or destroy testamentary disposition on the theory that the result accords with the natural desires of the deceased. The court must assume that the testator meant what was said in his will. It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable.

Now, most people will spell out what each beneficiary is to receive but forget that there may be more money, property or after acquired property accumulated over the many years before the death of the person who executed the will. This is why your lawyer will include a residuary clause in the will.

However, in one Florida case the had to determine what to do with after-acquired property that the testator accumulated after she inherited from another family member and her E-Z will form that she used did not include a residuary clause.

On April 5, 2004, Ms. Ann] Aldrich wrote her will on an “E-Z Legal Form.” In Article III, entitled “Bequests,” just after the form’s pre-printed language “directing that after payment of all my just debts, my property be bequeathed in the manner following,” she hand wrote instructions directing that all of the following “possessions listed” go to her sister, Mary Jane Eaton:

— House, contents, lot at 150 SW Garden Street, Keystone Heights FL 32656

— Fidelity Rollover IRA 162-583405 (800-544-6565)

— United Defense Life Insurance (800-247-2196)

— Automobile Chevy Tracker, 2CNBE 13c916952909

— All bank accounts at M & S Bank 2226448, 264679, 0900020314 (352-473-7275).

Ann also wrote: “If Mary Jane Eaton dies before I do, I leave all listed to James Michael Aldrich, 2250 S. Palmetto 114 S Daytona FL 32119.” Containing no other distributive provisions, the will was duly signed and witnessed.

Three years later, Ms. Eaton did die before Ann, becoming her benefactor instead of her beneficiary. Ms. Eaton left cash and land in Putnam County to Ms. Aldrich, who deposited the cash she inherited from Ms. Eaton in an account she opened for the purpose with Fidelity Investments. On October 9, 2009, Ann Dunn Aldrich herself passed away, never having revised her will to dispose of the inheritance she had received from her sister.

After being appointed as personal representative of Ms. Aldrich’s estate, Mr. Aldrich sought to have a court determine who would inherit the property that Ms. Aldrich acquired after the execution of her will.

Laurie Basile and Leanne Krajewski, Ms. Aldrich’s nieces from a predeceased brother, asserted an interest in the probate action.

Mr. Aldrich initiated an adversary proceeding in the probate case and argued that the most reasonable and appropriate construction of the will was that Ms. Aldrich intended for her entire estate, including what she had acquired from her sister, to pass to him.

As support for this assertion, Mr. Aldrich cited:

(1) the language of the will that only named Ms. Aldrich’s predeceased sister and Mr. Aldrich as beneficiaries and disposed of all of the property then owned by the decedent;

(2) section 732.6005(2), Florida Statutes, which provides that a will shall be construed to pass all property that the testator owned at death, including property acquired after the will is executed; and

(3) the legal presumptions against a construction that results in partial intestacy and that, in making a will, a testator intends to dispose of his or her entire estate.

The nieces argued that without any general devises and in the absence of a residuary clause, Ms. Aldrich’s will contained no mechanism to dispose of the after-acquired property or any other property not mentioned in the will, so that she died intestate as to the Putnam County property and the cash in the non-IRA Fidelity Investments account.

The trial court entered summary judgment in favor of Mr. Aldrich on the purported authority of section 732.6005(2). The First District reversed the decision of the trial court, concluding that section 732.6005(2) does not control the question presented by these facts because the disputed property was not alluded to in the will and, therefore, it is irrelevant whether it was acquired before or after the will was executed.

732.6005 Rules of construction and intention.—(1) The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.

(2) Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will.

The Florida Supreme Court responded to the question certified by the First District Court of Appeals in the negative. The question certified to be of great public important was as follows:

WHETHER SECTION 732.6005, FLORIDA STATUTES (2004) REQUIRES CONSTRUING A WILL AS DISPOSING OF PROPERTY NOT NAMED OR IN ANY WAY DESCRIBED IN THE WILL, DESPITE THE ABSENCE OF ANY RESIDUARY CLAUSE, OR ANY OTHER CLAUSE DISPOSING OF THE PROPERTY, WHERE THE DECEDENT ACQUIRED THE PROPERTY IN QUESTION AFTER THE WILL WAS EXECUTED?

This unfortunate result stems not from this Court’s interpretation ofFlorida’s probate law, but from the fact that Ms. Aldrich wrote her will using a commercially available form, an “E-Z Legal Form,” which did not adequately address her specific needs — apparently without obtaining any legal assistance.

This form, which is in the record, did not have space to include a residuary clause or pre-printed language that would allow a testator to elect to use such a clause.

Because Ms. Aldrich’s will devised all of her currently held property, this omission was not initially problematic. However, when Ms. Aldrich later acquired property from her sister, who pre-deceased her, the absence of a residuary clause frustrated Ms. Aldrich’s testamentary intent because, without such a clause, Ms. Aldrich’s self-drafted will expressed no intent as to this after-acquired property. Apparently, Ms. Aldrich at some point recognized that her acquisition of this property needed to be addressed, but her attempts to amend her will to account for this after-acquired property, although logical, were legally ineffective.

While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.” Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.

I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees — the precise results the testator sought to avoid in the first place.

Just because a loved one is tragically lost to us by a wrongful death, the heath care providers and institutions that have incurred expenses and charges in caring for the loved you have lost, still want to be paid .

It is a fact of life that just because the patient died the hospital still wants to be paid for services rendered. In fact, when an estate is administered, these entities have to be notified of the existence of any recovery so that claims can be filed and lawyers for the hospital or funeral home or other creditors can have their day in court as well.

What about the unpaid student loans? There will be a lien from any health care provider as well including Medicare and / or Medicaid. How are those charges dealt with?

You will be surprised that the hospital lawyers will be arguing that the mother and father of the deceased son or daugther should not receive the entire net award or settlement but that the mother and / or father’s proceeds should be reduced by what the hospital is owed for their charges for services provided to the deceased.

The competing augments will be that the surviving parents or parent will have a pain and suffering loss that will last a life time and the money which was recovered should be paid to the parents rather to the hospital and doctors.

In one Florida case, Lekeina Walker, the fifteen-year-old child of Mr. Walker and Ms. Bailey, died at the Orlando Regional Medical Center, allegedly as the result of medical malpractice. Ms. Bailey was appointed the personal representative of Lekeina’s estate and filed a wrongful death suit against ORMC. After settling with ORMC, Ms. Bailey petitioned the probate court for an equitable distribution of the settlement proceeds, asking the court to find that she had suffered a “majority” of the loss. Ms. Bailey’s counsel provided formal notice of the petition to Mr. Walker and advised him that a hearing on the petition would be held several weeks later. When more than twenty days passed without any response from Mr. Walker, and prior to the scheduled hearing, the trial judge entered an order apportioning 100% of the settlement proceeds to Ms. Bailey, who then notified Mr. Walker that the hearing was cancelled. Mr. Walker moved for rehearing, asserting that he believed that the scheduled hearing was the appropriate time to assert his position. Mr. Walker further objected to apportioning the entire settlement to Ms. Bailey, and advised the court that he wanted to present evidence on the apportionment issue. After the trial court summarily denied the motion for rehearing, this appeal followed.

Clearly, in this case the trial judge was doing was siding with the parents before any evidence was taken as to the measure of loss the parents had suffered versus the monetary value of the claim that was being made against the settlement proceeds by the hospital.

Mr. Walker also argues that Ms. Bailey breached her fiduciary duty to reasonably and equitably apportion the settlement proceeds, correctly contending that she had a duty to apportion settlement proceeds in a reasonable and equitable manner. See Guadalupe v. Peterson, 779 So. 2d 494, 497 (Fla. 2d DCA 2000); Cont’l Nat’l Bank v. Brill, 636 So. 2d 782, 784 (Fla. 3d DCA 1994). However, because there was no hearing on this issue, there is no evidence regarding a reasonable or fair apportionment, and therefore nothing to suggest Ms. Bailey breached her duty. The trial court must consider this issue in the first instance.

When a wrongful death case is settled before trial, the trial court resolves questions concerning the apportionment of proceeds between survivors. § 768.25, Fla. Stat. (2011); Hess, 758 So. 2d at 1205-06. The trial court must determine if the proposed apportionment is reasonable and equitable based upon competent, substantial evidence. The failure to make that determination is an abuse of discretion. Woods, 770 So. 2d at 1271; In re Estate of Wiggins, 729 So. 2d at 526; Univ. Med. Ctr. v. Zeiler, 625 So. 2d 120, 122 (Fla. 5th DCA 1993). Here, the probate court apportioned the settlement entirely to Ms. Bailey without a hearing and without considering any evidence. This procedure denied Mr. Walker due process. The order must be reversed. See LoCascio v. Estate of LoCascio, 78 So. 3d 573, 574 (Fla. 3d DCA 2011).

It is not uncommon to find situations where a child, Catherine, in this case, was born to a married couple and is later determined to have another biological father other than the man whose name appears on her birth certificate.

Even though the couple’s divorce decree and final judgment refer to the Catherine as the child of the parties’ and conceived during the marriage, this child has a different biological father, than the divorced man who is obligated to pay child support to Catherine’s mother until Catherine become an adult.

The legal issue, years later, is whether this child is a “descendant by blood” entitled to inherit when her non-biological father dies leaving money in a trust for his “descendants by blood.” Now, after his first marriage ends, he marries and has several more children with another woman.

The other children born after the second marriage sought to exclude Catherine from the assets of the trust on the basis that Catherine, had a different biological father. The critical language in the trust is the limitation of beneficiaries of the class gifts made in both trusts to “only children and descendants by blood.” The Court first excluded Catherine, the child born of the dissolved marriage but an appellate court reversed the lower court and directed that Catherine take a share of the trust proceeds.

Section 731.29(1), Florida Statutes (1973), provides:

Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes

(“[A] final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity.”); A.S. v. S.F., 4 So. 3d 774, 775 (Fla. 5th DCA 2009) (recognizing the general rule “that when a child is born into an intact marriage, as recognized by the husband and wife, the husband is deemed to be the legal father”); Glover v. Miller, 947 So. 2d 1254, 1257 (Fla. 4th DCA 2007) (holding that where there is an existing adjudication of paternity, that adjudication must be given effect for the purposes of intestate succession, even though scientific testing showed that someone other than the man adjudicated to be the decedent’s father was in fact the decedent’s biological father.

Accordingly, Catherine could take an equal share of the trusts assets and was not excluded by the language of the trust which was contrary to Florida statutory law.
Blended families are very common today in our society. No person wants to leave this world without addressing real life issues that may tie up assets in probate court for any longer period of time than is necessary when it is the testator’s desire that his assets go  to his loved ones without controversy. Make sure that your last will and testament is crystal clear as to assets to be given to all children from any union that the testator wishes to provide for.

Section 733.207 outlines the procedure for establishing a lost or destroyed will:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

The term “will,” as used in the statute, includes a codicil. See § 731.201(40), Fla. Stat. (2010); see also Fla. Prob. R. 5.510 (stating additional requirements for the establishment and probate of a lost or destroyed will). Under the statute, the testimony of one disinterested witness is sufficient to prove the content of the lost will or codicil if the proponent can produce a “correct copy” of the instrument. Douglass v. Frazier (In re Estate of Musil), 965 So. 2d 1157, 1159 (Fla. 2d DCA 2007); Bury v. DiLegge (In re Estate of Kero), 591 So. 2d 675, 676-77 (Fla. 4th DCA 1992). In the absence of a correct copy, the testimony of two disinterested witnesses is required to prove the content of the lost will or codicil. Tartaglia v. Hatten (In re Estate of Hatten), 880 So. 2d 1271, 1275 (Fla. 3d DCA 2004).

Can a copy of the will or codicil on a computer hard drive be deemed a copy? The answer is yes if it can be demonstrated that there has not been any tampering or alteration of the copy by technology. With today’s technology a copy of a lost will or codicil retrieved from the hard drive of a computer or from a cloud database may be a  “correct copy” within the meaning of section 733.207.

However, the proponent of the lost will or codicil will have to present testimony by a witness to the execution of a will or codicil that the carbon copy or copy of the hard drive produced at the hearing was identical to the original will executed by the decedent to meet the requirements of a “correct copy” under the statute for proving the content of the lost original.

The reverse would be true if the witnesses presented at any hearing who was one of the witnesses to the execution of the original codicil and or lost will did not read any of the documents to which the person signed as a  witness. Thus, such a witness would not be able to testify to the content of the codicil signed by the decedent.

Who is interested and who is disinterested as a witness?

There is a significant distinction between the concept of an “interested person” under section 731.201(23) and the concept of “disinterested witnesses” as used in section 733.207.

Under the Probate Code, the term “interested person” refers to a person’s or entity’s standing, i.e., the right to notice and an opportunity to be heard in a particular proceeding pending in a probate or guardianship matter. See Hayes v. Guardianship of Thompson, 952 So. 2d 498, 507-08 (Fla. 2006).

On the other hand, a person may be described as “disinterested” when he or she is “[f]ree from bias, prejudice, or partiality; not having a pecuniary interest.” Black’s Law Dictionary 536 (9th ed. 2009). It follows that a “disinterested witness” — as the term is used in section 733.207 — refers to a person “who has no private interest in the matter at issue.” Black’s Law Dictionary 1740 (9th ed. 2009). To put it differently, a “disinterested witness” has no stake in the outcome of the matter in which he or she offers evidence. See The American Heritage Dictionary of the English Language 519, usage note (4th ed. 2000) (“In traditional usage, disinterested can only mean ‘having no stake in an outcome,’ . . . .”). The probate court’s ruling erroneously assumed that an “interested person” under the Probate Code could not simultaneously be a “disinterested witness.”

The personal representative of an estate is an interested person in virtually every proceeding affecting the administration of an estate. Describing the personal representative as an interested person is another way of saying that he or she is entitled to notice and an opportunity to be heard before the matter under consideration is determined. A personal representative can be an interested person in a proceeding while remaining disinterested in the result of the proceeding.

For example, a personal representative may have no private interest in the result of a proceeding to determine the entitlement of a surviving spouse to the elective share conducted in accordance with Florida Probate Rule 5.360(c). In that sense, the personal representative is disinterested. However, the personal representative would be an interested person entitled to notice of the proceeding and opportunity to be heard. Thus, the personal representative can be an interested person but still participate in a proceeding as a disinterested witness.