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May 2016

Miami Appellate Team Wins Again with Issue of First Impression in Florida

Miami partner David M. Gersten and associate Christopher A. Noel recently obtained another appellate victory by successfully reversing a trial court’s dismissal with prejudice of a complaint involving Florida’s trust and probate laws. The case was one of first impression, concerning the ownership of real property and is the second successive appellate victory for these Gordon & Rees clients this year.

Gordon & Rees’ clients, personal representatives of an estate, filed a declaratory relief action seeking a declaration concerning ownership of six parcels of valuable Florida waterfront property. The properties were titled in the decedent’s name with the addition of the words “as trustee.” Gordon & Rees' assertion was that the properties are owned in fee simple by the estate, and not a trust, because there was no reference to a specific trust anywhere on the properties’ deeds.

Gordon & Rees' clients (appellants) asserted that: (1) Florida law disfavors secret trusts; and, (2) the Probate Code states: absent a separately recorded declaration of trust, the words “as trustee” have no effect when found on a deed. Therefore, as a matter of law, the properties belong to the estate and not a trust.

In response, the beneficiary under the alleged secret trust (appellee) challenged the personal representatives’ standing to bring the action under the Probate Code. Further, after the declaratory action was filed, the beneficiary filed a declaration that the properties were intended for a specific trust where he was the sole beneficiary. The beneficiary contended that his declaration was sufficient to establish that the properties belonged to the trust and not the estate.

In its published opinion, the Third District Court of Appeal sided with the arguments raised by the Gordon & Rees team. The appellate court reversed the dismissal of the complaint because: (1) the appellants had standing; (2) the appellants stated a legally sufficient cause of action under the Probate Code; and, (3) the beneficiary’s post-filing declaration of trust was not sufficient to remove the properties from the estate. The appellate court remanded the case back to the trial court for further proceedings.

David M. Gersten
Christopher A. Noel



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