How do you describe your practice to non-attorneys?
The majority of my practice involves the representation of institutions and individuals involved in or trying to avoid becoming involved in, disputes over the distribution of assets upon a person’s death or incapacity. This practice is known by many names such as fiduciary litigation; probate, trust, and guardianship litigation; or simply, estate litigation.
When litigation arises from a death, the court is charged with following the decedent’s intentions in determining how to direct the interested parties to carry out their estate plan. My practice often involves advocating a particular interpretation of the decedent’s estate plan and their intentions in a manner that is consistent with the law and my client’s views.
The decedent’s surviving family members, business associates, advisors, friends, and other acquaintances often have differing interpretations of the decedent’s intentions, regardless of what may appear to be the clear language of the decedent’s estate plan. In other situations, documents may be unclear; the mental capacity of the decedent may have been compromised at times relevant to the creation of the estate plan; or there could be a legitimate question of influence over the decedent’s mind by a close family member or friend during the time the estate plan was being formulated and signed.
I also advise individuals and institutions, such as trust companies and banks, when they serve in the roles of personal representative under a will, guardian of an incapacitated person, or trustee under a trust agreement. I counsel such clients regarding their appropriate conduct when exercising their fiduciary duties under Florida law, and I represent these individuals and institutions in litigation matters.
How did you decide on your practice area?
I was fortunate that as a young attorney, the Firm had an active estate planning and probate practice, and my partners in that area, who were not litigators, asked me to become involved in contested matters on behalf of existing clients. This was a time when there was a relatively modest amount of will and trust litigation in South Florida. However, during the past twenty-five years there has been a dramatic increase in fiduciary litigation in this region, which has helped me considerably in building my practice.
What are some of the most interesting aspects of your litigation practice?
I find that every case is interesting in its own right. I learn something about the decedent and the people surrounding the decedent, his or her family, and often of greatest interest, how the decedent’s wealth was established. While I do not think money is the “root of all evil,” it can bring out the worst in people, turning friends and relatives against each other by revealing or magnifying cracks in familial and social relationships, resulting in litigation.
There are times when probate litigation is not just about the money. Sometimes it involves the perception that the amount of inheritance one child receives reflects the amount of love the decedent had for that child. It can be very hurtful to children who receive different bequests. Disparate bequests can cause suspicion and jealousy. It is very common for a patriarch’s or matriarch’s death to give rise to disputes among siblings, or between the children of a first marriage against the children or surviving spouse of a subsequent marriage. This can cause families great distress and impede the grieving process because the focus becomes the litigation. When appropriate, I sometimes have to counsel clients that their view of fairness in an estate plan was not necessarily the decedent’s view.
A person practicing law in this area cannot help but develop insight into the complexity of familial relationships and personal struggles, and a practitioner must be prepared to deal with the sometimes intense emotional aspects of this practice that do not arise in other areas of the law.
In some ways, this practice involves many of the same difficult personal issues one sees in divorces. One of my favorite former probate judges once told me why she enjoyed presiding over the probate division of our Circuit Court. While some might find her comment trite, I find it brilliant in its simplicity, as well as humorous. She said, “I love probate court. It is divorce court without the sex.”
What do you enjoy most about what you do?
My work is fascinating. It is always intellectually stimulating. At different times, the practice requires knowledge of medicine, business, finance, taxation, real estate, and numerous areas of both substantive and procedural civil law. I think of the practice, metaphorically, as putting together a jigsaw puzzle without the middle five pieces.
Trust and estate litigation attorneys are charged with the responsibility of trying to divine and persuade others regarding one of the most personal and meaningful decisions in many persons’ lives – their legacy. Practitioners in this field must be prepared to engage in forensic legal work. This requires less technical skills such as persuasive writing and argument, diligence, common sense, empathy, creativity and willingness to listen.
I have found that the attorneys that practice in this field are intelligent, courteous, and skilled lawyers. They are good people, and we respect one another.
What are new or trending issues in your area of practice?
There are several trends in the litigation area that I see increasing, including:
• Electronic document signing
The requirements for properly executing a will and witnessing the execution have always been very specific and required attention to detail, but in this digital world, requirements are changing. Claims of improper execution relating to electronic will signing will likely be a fertile area for litigation.
• Fiduciary litigation
In recent years, there has been more scrutiny of fiduciaries, and we are seeing an increasing number of cases challenging institutional trustees in the handling of trust assets. As consumers and beneficiaries become more sophisticated, they become more aware of their legal rights. Where deference to trustees once existed, now exists a burgeoning space for fiduciary litigation.
• Non-profits as a beneficiary plaintiff
It used to be rare to see a non-profit fight for a share of a decedent’s estate. However, charitable organizations and foundations have become more assertive and are frequent will and trust litigants.
• Estate and probate litigation
Florida, in particular, will continue to serve as a breeding ground for estate and probate litigation.
People take up residency in Florida for many reasons, but one compelling reason for high earners is that it has no estate tax or income tax. It is the only state east of the Mississippi River that taxes neither earned income nor interest and dividend income.
In addition, people are living longer, so there are more situations from which litigation matters arise. Wealthy widows and widowers remarry, leading to disputes that often arise in blended families. Elderly individuals often live beyond their mental capacity. When a person's judgment is impaired, someone close to that individual, who controls aspects of their lives, may become adverse to other members of the family. Furthermore, the proliferation of online estate planning tools, which offer cookie-cutter solutions, can contain loopholes or subtleties in the documents that may be appropriate in some states but are not enforceable in Florida.
What aspects of the Firm and its culture have fostered your professional growth?
I have never worked at another firm. I have been happy at Jones Foster for 37 years because I received support and guidance to grow my practice in an environment of mutual respect, camaraderie, and collaboration. The Firm was built on the highest principles, excellence, and meaningful relationships, which is why the attorney retention is so high.
The single most important factor in any success I have realized in my career is the support I have received along the way from my mentor, Sid Stubbs, Senior Litigation Shareholder and former Chairman of Jones Foster. He is a highly respected and well-known litigator who has been my professional compass. When I am working to come to a decision, I invariably ask myself, “What Would Sid Do”?