Sorting Out Major Changes to the Florida Probate Code and Corresponding Rules

The Florida Supreme Court has acted quickly in response to the Florida Legislature's June 2011 amendments to Florida's Probate Code, which include some major departures from existing law.  Because the Code amendments also became effective as soon as the Governor signed them -- even applying retroactively to pending cases -- the Court immediately adopted a fast-track proposal by the Probate Rules Committee.

Florida lawyers that represent clients in probate cases would be wise to become familiar with the amended Rules.  To that end, here's a cheat sheet of the Code amendments and corresponding Probate Rule changes (as well as changes to the Rules that weren't prompted by legislative action).

Statutory Changes: Reformation.

The Code amendments allow two new types of petitions to reform a will.

The first and most drastic change, codified at Florida Statutes Section 732.615, allows for reformation of a will even if its language is unambiguous, where a petitioner proves through clear and convincing evidence that a provision was premised on a mistake of fact or law and is contrary to the intent of the testator.  Check out Craig Dreyer's post on Clark Skatoff's Florida Probate, Trust & Estate Blog for a more detailed explanation of this amendment.

The second, codified at Florida Statutes Section 732.616, allows for modification of the terms of a will "to achieve the testator’s tax objectives" so long as doing so "is not contrary to the testator’s probable intent."  

Corresponding Rule Changes:  Adversary Proceeding Rules apply to reformation cases and cases involving pretermitted shares, but not to fee awards.

Rule 5.025 was amended to make all actions for reformation Adversary Proceedings to which Rule 5.025, and the Florida Rules of Civil Procedure, apply.  Although there were no corresponding statutory changes, this Rule was also amended to require that actions regarding pretermitted shares will now be treated as Adversary Proceedings.

Rule 5.025(d)(2) was also amended to clarify that in all adversary proceedings, fee and cost awards are governed by the Probate Rules and decisions, not the Rules of Civil Procedure.

Statutory Changes:  The Fiduciary Exception to the Attorney Client Privilege No Longer Applies.

In Florida, as elsewhere, the fiduciary exception to the attorney-client privilege had allowed beneficiaries of wills and trusts to obtain documents in discovery that reflected legal advice given to their fiduciaries.  That is because any legal advice that a fiduciary obtains has traditionally been considered to have been obtained for the benefit of the persons for whom the person was acting as a fiduciary (e.g., the beneficiaries of a trust when a trustee obtained legal advice regarding administration of the trust.)

But the legislature overruled that common law exception in the newly created Florida Statutes Section 90.5021, which makes communications between an attorney and a fiduciary "privileged and protected from disclosure under s. 90.502 to the same extent as if the client were not acting as a fiduciary."  At the same time, the legislature amended Florida Statutes Section 733.212(2)(b) to require that Notices of Adminstration include a statement informing beneficiaries that "that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the personal representative and any attorney employed by the personal representative."

[Side note: Is it just me, or does giving this notice seem like a waste of ink?  If the beneficiary has a lawyer, the lawyer should already know that the fiduciary exception has been abolished (especially if he/she reads this blog!) and if the beneficiary does not have a lawyer, how likely is he/she to even know that the fiduciary exception ever existed, much less to understand the implication of its abolishment?]

Corresponding Rule Change:

The only change resulting from these amendments to the Probate Code is a minor change to Rule 5.240, which implements the Notice of Administration requirements of Section 733.212.  Rule 5.240(b)(2) was amended so that, consistent with the amendment to Section 733.212(2)(b), it now requires that Notices of Administration include a statement about the fiduciary's communications with counsel being privileged.



That should cover it.  Note that the Rules amendments may be further revised based on comments submitted to the Court, which were not solicited prior to the changes becoming effective due to their fast track nature, but are being accepted until November 28, 2011.  However, because the statutory amendments aren't going away, the corresponding Rules changes aren't likely to be revised much either.

Statutory changes of this magnitude, especially when made applicable to pending cases, usually result in more than a little confusion and much litigation over issues the legislature never even anticipated.  We can look forward to some interesting probate litigation and a good deal of uncertainty, at least until the appellate courts sort out these amendments.