FL MCQs Flashcards
Cy Pres
The doctrine of cy pres (meaning “as near as possible”) may be applied by a court to modify or terminate a charitable trust or a charitable provision in a private trust when:
- a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful and
- trust property may be applied or distributed, in whole or in part, in a manner consistent with the settlor’s charitable purpose.
Spouse as Beneficiary
It is common to designate one’s spouse as the beneficiary of a payment (e.g., life insurance proceeds) or transfer of an interest in an asset upon one’s death. But, if the decedent’s marriage was judicially dissolved or declared void before he died, then any previously designated payment or transfer at death to the decedent’s former spouse is void unless:
- the decedent remarried the former spouse whose interest would have been revoked and
- they were married to each other at the time the decedent died.
Heir Surviving Decedent
An heir must survive the decedent in order to inherit from the decedent. Florida does not require an heir to survive a decedent for a number of days or hours, and the briefest time period will suffice
Formalities of Will
In Florida, a will is validly executed if it is in writing, signed by the testator, and witnessed by two individuals. The witnesses must attest and sign the will in the presence of the testator and each other. But the witnesses do not need to read the will, or even be aware that the document is a will, for the will to be validly executed
Holographic Wills
In Florida, a will that is written in the testator’s own handwriting (i.e., a holographic will) will be held as valid if the document complies with all other Florida statutory requirements.
Valid Will in Florida
To be considered a valid will in Florida the instrument must generally be signed by the testator with present testamentary intent. A proxy may sign in lieu of the testator if the proxy signs the testator’s name and signs in the presence and at the direction of the testator. The instrument must be signed by:
- the testator—in the presence of two witnesses or acknowledge the signature to them and
- two witnesses—in the presence of the testator and each other.
A person who signs in another capacity (e.g., proxy) may count as a required witness if the presence requirements are met.
Adding and Dropping Parties
In Florida, parties may be added once as a matter of course by the plaintiff and may also be added by an adverse party. Parties may also be added or dropped:
- by court order, on the court’s own initiative or
- on motion by any party at any stage on such terms as are just.
Once a party has been dropped, the trial court lacks jurisdiction to grant that party’s motion for summary judgment. Further, a party should not be dropped against a plaintiff’s wishes unless there is no other way to protect the dropped party’s rights. The order must provide for “such terms as are just” for all parties to the litigation.
Age Requirement to be Witness to Will
In Florida, any person competent to be a witness at the time of attestation may act as a witness to a will; there is no minimum age required.
Interested Witness to Will
In Florida, a will is not invalid simply because it is signed by an interested witness—i.e., a person with a direct pecuniary interest under a will.
Sever Trial for Co-Defendants
The State may charge defendants together in the same information or indictment if the offenses are: (1) triable in the same court and (2) based on the same act or transaction or on two or more connected acts or transactions. But a court must grant a motion to sever a codefendant’s trial and order separate trials before trial if it is necessary to protect the defendant’s right to speedy trial or to promote a fair guilt or innocence determination.
If a codefendant makes an incriminating statement against another codefendant, the court must: (1) determine if the prosecution will offer the statement at trial and (2) if so, make an admissibility determination. If the codefendant’s statement is inadmissible against the moving defendant, the State must either:
- hold a joint trial and not admit the statement against the other codefendant
- hold a joint trial and remove any reference to the moving defendant before admitting it at trial, or
- sever the moving defendant.
Sever Trial Codefendants
A court must sever and order separate trials for codefendants if it is necessary to protect the defendant’s right to speedy trial or to promote a fair guilt or innocence determination.
Affirmative Defenses Which Must be Raised in Pre-Answer Motion to Dismiss
Under Florida law, a party waives certain affirmative defenses and objections unless these defenses are raised in a pre-answer motion to dismiss when such motion is made, such as:
- lack of personal jurisdiction
- improper venue
- insufficiency of process and
- insufficiency of service of process.
However, other defenses may be raised in or after the filing of an answer or responsive pleading.
Creditor Reaching Amount Distributed Through Irrevocable Trust
With respect to an irrevocable trust in which the settlor is also a beneficiary (i.e., a self-settled trust), a settlor’s creditor may reach the maximum amount that can be distributed to the settlor or for the settlor’s benefit, even though the trust is subject to a spendthrift provision.
What happens when a trust is not specific in regard to the revocability and the settlor later has a valid will?
A trust is presumed to be revocable unless the terms expressly provide that it is irrevocable. A settlor may revoke or amend a revocable trust by substantial compliance with any method provided in the terms of the trust. But if the terms of the trust do not provide a method, revocation may occur by:
- a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust or
- any other method manifesting clear and convincing evidence of the settlor’s intent.
If the trust is revoked, then the trustee must distribute the property as directed by the settlor.
Attorney as Trustee of Trust Drafted by the Attorney
If the terms of a trust specify the trustee’s compensation, then the trustee is generally entitled to be compensated as specified. But an attorney serving as trustee is not entitled to compensation if the attorney prepared the trust instrument that appointed the attorney as trustee, unless the attorney:
- is related to the settlor or
- makes certain disclosures to the settlor (e.g., compensation is in addition to attorney fees), confirmed in a written acknowledgement, before the instrument is executed.
Attorneys Fees and Costs Incurred After Defendant Has Made Settlement Offer Which Was Denied or Ignored by Plaintiff
In Florida, when a defendant makes a written settlement offer that is served on the plaintiff at least 45 days prior to trial, and the plaintiff rejects or fails to respond to the offer, the defendant is entitled to recover reasonable costs and attorney’s fees incurred after making the offer when the amount awarded to the plaintiff is at least 25 percent less than the amount of the offer.
Plea Agreements
In Florida, the prosecution and defense are encouraged to negotiate plea agreements. Even if the defendant is self-represented (i.e., pro se) and not represented by counsel, the parties may negotiate and enter a guilty or nolo contendere plea. But the prosecutor must maintain a record of any direct conversations with the pro se defendant that resulted in the plea agreement and make the record available to the court upon entry of the negotiated plea.
Will Provision Conditioned Upon Future Events
In Florida, a decedent’s will may designate a devisee by reference to an unattested act or event that has some significance apart from the will—i.e., events outside of a testator’s control (Choice A). This unattested act or event must occur:
- before or after the execution of the will—e.g., a provision conditioned upon future events (Choice B) or
- after the testator’s death.
And in Florida, the act of revoking a will by another person can be considered an act of independent significance.
Subsequent Bigamous Marriage and Surviving Spouse Trying to Inherit
A subsequent bigamous marriage to another will estop the surviving spouse from taking an intestate share of the first spouse’s estate in Florida.
Devisee Dies Before a Testator
A devise “lapses” when a devisee dies before the testator, or before the end of a period of time by which the devisee was required to survive the testator under the will. As a result, the devise fails, and the devise goes to the testator’s residue unless the will provides for an alternate disposition. If the will does not contain a residuary clause, the devise passes through intestacy.
However, under Florida’s anti-lapse statute, a predeceasing devisee’s surviving descendants will take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator. This statute applies if:
- the devisee is a grandparent or a descendant of a grandparent of the testator (e.g., a testator’s child, grandchild, parent, aunt, uncle, cousin), and
- the devisee (i) is dead when the will is executed, (ii) fails to survive the testator, or (iii) is required by the will or operation of law to be treated as having predeceased the testator.
Intestacy
Intestacy is the default statutory distribution scheme that applies when an decedent dies without having disposed of his property through non-probate instruments or a valid will. To be entitled to take under an intestacy statute, a decedent’s spouse must have been legally married to the decedent at the time of the decedent’s death. But Florida does not recognize common-law marriage.
Apex Doctrine
Under the Apex Doctrine, current and former high-level government or corporate officers may seek an order preventing them from being deposed. The motion may be made by the person from whom the deposition is sought and must be accompanied by an affidavit stating that the officer lacks unique, personal knowledge of the issues being litigated. The court will then issue a protective order, and the burden shifts to the other party to show that:
- it has exhausted other discovery
- the prior discovery is inadequate, and
- the officer has unique, personal knowledge of discoverable information.
If the party seeking discovery meets this burden, the court may vacate or modify its previous order.
Advancement of Inheritance
Property given to an heir during a decedent’s life will be considered an advancement only if the gift is (1) declared in a contemporaneous writing by the decedent, or (2) acknowledged in writing by the heir.
Advancements When Testator Outlives Heir
Property that a testator gives during his lifetime to an heir is treated as an advancement against the heir’s share of the testator’s estate only if the advancement is:
- declared in a contemporaneous writing by the decedent or
- acknowledged in writing by the heir.
If the testator outlives the heir and the heir’s descendants take the intestate estate, the property is not included in computing their shares—unless the declaration or acknowledgment specifically binds the descendants.
