Florida Probate Litigation Lawyer Blog

Reversible Error: Cases where Insufficient Attorney’s Fees Awards were Remanded on Appeal

April 25, 2025 | by Chepenik Trushin LLP

In reviewing a trial court’s award of reasonable attorney’s fees for the prevailing party, appellate courts must look to the record to determine if “there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances.” Raza v. Deutsche Bank Nat’l Tr. Co., 100 So. 3d 121, 126 (Fla. 2d DCA 2012). While the amount of fees awarded is subject to a trial court’s discretion, appellate courts still may assess whether trial courts abused that discretion in determining the amount of fees owed to the prevailing party. In some instances, this leads to trial courts being reversed on appeal for awarding significantly less than the amount requested by the party seeking attorney’s fees.

For example, in Biscayne Roofing Co. v. Palmetto Fairway Condo. Ass’n, the Third District Court of Appeal found error in the amount of attorney’s fees awarded by the trial court. In the court below, unrebutted expert testimony called for a fee award between $19,000 and $25,000, but the trial court awarded only $10,000. The appellate court found that the $10,000 award was not supported by the record and constituted an abuse of the trial court’s discretion. The appellate court remanded the fee issue to the trial court for a redetermination of the amount of attorney’s fees owed consistent with its order. 418 So. 2d 1109, 1110-11 (Fla. 3d DCA 1982).

Further, in Autorico, Inc. v. Gov’t Empls. Ins. Co., the Third District Court of Appeal held that the trial court erroneously awarded attorney’s fees based on a contingency fee agreement and not the amount it found reasonable. In the court below, the plaintiff insurer was awarded a judgment against defendant automobile seller for selling a defective automobile to the insured that caught fire after being driven 10 miles. Plaintiff filed a motion to recover its attorney’s fees on the basis that Defendant had asserted frivolous defenses, thereby entitling Plaintiff to its reasonable attorney’s fees. The trial court granted the motion and found that the reasonable attorney’s fees incurred were $2,150.00, but awarded only $833.33 in accordance with the contingency fee contract between Plaintiff and its attorney. The appellate court reversed and held that it was error for the trial court to base the fee award on the contingency fee contract rather than the reasonable amount of fees it had found to be incurred, as the court was not bound by the contingency fee contract in awarding a reasonable fee. The appellate court remanded with directions to enter an attorney’s fee award of $2,150.00. 398 So. 2d 485, 486-88 (Fla. 3d DCA 1981).

Contingency Fee Multipliers

March 24, 2025 | by Chepenik Trushin LLP

In Florida Patient’s Compensation Fund v. Rowe, the seminal 1985 case in Florida on prevailing party attorney’s fees, the Florida Supreme Court affirmed that when computing a reasonable attorney’s fee for the prevailing party in a case involving a contingency fee agreement, a significant factor to consider in the calculation is the contingency risk factor, or “multiplier.” In Rowe, the Court discussed the need for lawyers to offer services on a contingency basis in order to provide litigants with increased access to the court system and the service of attorneys, as well as the burden this places on attorneys who may only get paid if their client ultimately prevails in the litigation. The Rowe Court held that, upon calculating a preliminary “lodestar” award of attorney’s fees for the prevailing party (i.e., the reasonable hours expended on the litigation multiplied by a reasonable hourly rate for the services provided), Florida courts are authorized to enhance that lodestar by a multiplier of 1.5 to 3, depending on the prevailing party’s likelihood of success at the outset of the case. For example, if a court were to calculate a lodestar of $100,000.00 in reasonable attorney’s fees in a case involving a contingency fee agreement, Rowe would authorize the court to multiply that amount by 1.5 to 3 (resulting in a potential fee award of anywhere between $150,000.00 and $300,000.00). Specifically, the Rowe Court held that when success is more likely than not at the outset of litigation, the multiplier should be 1.5; when the likelihood of success is approximately even at the outset, the multiplier should be 2; and when success was unlikely at the time the case was initiated, the multiplier should be between 2.5 to 3.

A few years later, after the United States Supreme Court effectively eliminated the use of the contingency multiplier in Federal matters, the Florida Supreme Court reexamined its decision in Rowe. In Standard Guaranty Ins. Co., v. Quanstrom, the Florida Supreme Court modified the computation of the contingency fee multiplier. The Court placed attorney’s fees cases into three broad categories: (1) public policy enforcement cases, (2) tort and contract claims, and (3) family law, eminent domain, and trusts and estates matters. In the public policy category, the Florida Supreme Court agreed with the United States Supreme Court that the twelve factors set forth in Johnson v. Georgia Highway Express, should be utilized to determine a reasonable attorney’s fee. Second, in the tort and contract claims category, the court reaffirmed the factors set forth in Rowe and considered additional factors in determining whether to apply a multiplier: “(1) whether the relevant market requires a contingency fee multiplier to obtain competence counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.” The Court reasoned that a multiplier is still a useful tool which can help assist trial courts in determining reasonable fees when risk of nonpayment is established, though modified the multiplier factor established in Rowe to allow a multiplier of the calculated lodestar from 1.0 to 2.5 (replacing the previous standard of 1.5 to 3.0). However, in the family law, eminent domain, and trusts and estates category, the Court held that multipliers are generally not justified.

In 2017, the Florida Supreme Court again addressed the utilization of multipliers in Joyce v. Federated Nat’l Ins. Co. The Court made clear that the use of contingency fee multipliers is not limited to “rare” or “exceptional” circumstances, a position that had been taken by some lower state courts. However, in 2023, the Florida Statutes were amended at F.S. 57.104 to state that “there is a strong presumption that a lodestar fee is sufficient and reasonable. This presumption may be overcome only in a rare and exceptional circumstances with evidence that competent counsel could not otherwise be retained.” Thus, while a multiplier is still available under Florida law, the circumstances in which a court may apply a multiplier are now substantially constrained.

Does the losing side have to pay my attorney’s fees?

March 4, 2025 | by Chepenik Trushin LLP

Broadly speaking, there are two approaches to the payment of the winning, or “prevailing,” party’s attorney’s fees at the conclusion of litigation. In some countries outside the United States, courts follow the “English Rule” for determining who is responsible for paying the prevailing party’s attorney’s fees, where the losing party typically pays the prevailing party’s attorney’s fees as a matter of course. In contrast, the “American Rule” for attorney’s fees provides that each party is generally responsible for paying their own attorney’s fees, regardless of the outcome of the case. However, Florida recognizes exceptions to the American Rule, such that the losing party in a lawsuit may be required to pay the prevailing party’s attorney’s fees – namely, when a statute or contract expressly entitles the prevailing party to recover its attorney’s fees from the losing party in the event of litigation. In such instances, Florida law requires that the fee to be recovered from the losing party be reasonable, and a body of case law has been developed governing the calculation of a reasonable attorney’s fee for the prevailing party.

In Florida, the basic model for determining reasonable attorney’s fees primarily follows the federal “lodestar” approach. This method involves accounting for several criteria and calculating the total number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate to produce the “lodestar” amount. The court may then adjust this lodestar amount based on factors such as the contingency risk and the results obtained.

In determining reasonable attorney fees, Florida courts consider the following criteria:

Last-Minute Estate Planning: Are Deathbed Wills Valid?

January 22, 2025 | by Chepenik Trushin LLP

The creation and execution of a Last Will and Testament is often a formal, thorough process. The creation of a Will is best done with the advice and assistance of a lawyer, and the execution of a Will is also best done in the presence of that lawyer as well as other required witnesses. These formalities help ensure the Will accurately states the testator’s wishes and help prevent challenges to the will after the testator passes away. While formal creation and execution is the ideal scenario, it is not always the reality.

Sometimes, testators create and execute their Will at the last minute, possibly even on their deathbed when they know that death is imminent. This may happen because the testator fell ill suddenly, failed to execute a Will until they were elderly, or sought to change a previous Will before it was too late. Due to the circumstances that give rise to the creation of deathbed Wills, they are often contested after the testator passes away.

For a Will to be valid in Florida, it must be written, signed by the testator or by someone at their direction, and signed by two attesting witnesses. Florida does not recognize oral or handwritten Wills. If a testator attempts to express a Last Will and Testament simply by speaking their wishes, that oral expression will not constitute a valid Will under Florida law. Additionally, if a testator attempts to express a Last Will and Testament simply by writing down their wishes, that document likewise will not be valid under Florida law.

The Slayer Statute: Beneficiary Disqualification when there is Foul Play

December 20, 2024 | by Chepenik Trushin LLP

Chapter 732, section 802 of the Florida Statutes has a very ominous nickname: “The Slayer Statute.” So, what exactly does it mean and when does it apply?

The Statute states “A surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent.” In other words, if someone is involved in causing the death of another, they will not be able to inherit anything from that person. While this is a self-explanatory law on its face, it is quite complex under the surface.

First, the death at issue must be unlawful and intentional. The homicide must be intentionally carried out and not merely an accident. This means that the killer must commit certain actions to cause the death and have a culpable mental state.

Advance Directives: Documenting your Health Care Wishes in the Event you Cannot Express them Yourself

November 11, 2024 | by Chepenik Trushin LLP

The Florida Legislature has enacted a statute that recognizes every competent adult’s right to make decisions regarding their health, including the right to refuse medical treatment. Fla. Stat. § 765.102(1). Further, the statute specifically allows “a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures or to designate another to make the health care decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her health care.” Fla. Stat. § 765.102(4).

Florida law defines an “advance directive” as “a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information.” Fla. Stat. § 765.101(1). In other words, an advance directive is a statement about how you want medical decisions to be made if you cannot make or express them yourself. People often execute advance directives when they are diagnosed with a life-threatening illness, but advance directives can be made at any point in time by a competent adult. For a number of reasons, it can be beneficial to put your wishes into writing before health concerns arise.

An advance directive “includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.” Fla. Stat. § 765.101(1).

Class Gifts: Leaving Assets to a Dynamic Group of People

September 9, 2024 | by Chepenik Trushin LLP

A class gift is a sum of assets that is given to and divided among a group of beneficiaries. The beneficiaries of a class gift are a group that can be expected to expand or contract between the time of will execution and the testator’s death. A class gift allows a testator to identify a group of beneficiaries in relation to their status or membership in a defined class, rather than identifying individuals particularly.

The Restatement explains that a class gift is “a disposition to beneficiaries who take as members of a group. Taking as members of a group means that the identities and shares of the beneficiaries are subject to fluctuation.” Further, the Restatement says that a “disposition is presumed to create a class gift if the terms of the disposition identify the beneficiaries only by a term of relationship or other group label. The presumption is rebutted if the language or circumstances establish that the transferor intended the identities and shares of the beneficiaries to be fixed.” RST (3d) §13.1.

A testator may want to leave a class gift if they want to devise property to a dynamic group, meaning a group whose membership can or may change over time. For example, a will may leave an asset to a group identified by language such as “my siblings,” “my nieces and nephews,” or “my children,” rather than by explicitly identifying the intended beneficiaries by name. A class gift avoids the necessity of revising the will when a member of the class later is born or dies. For example, a gift given “to my grandchildren” will include a grandchild already living when the testator executed their will, as well as other grandchildren later born following execution of the will. The enables the testator to leave a gift to all of their grandchildren without having to redo their will each time a new grandchild is born. Further, while groups are usually considered closed when the testator dies, there may be exceptions. For example, a child conceived but not born before the testator’s death could be considered a member of a group of the testator’s children.

Power to Disclaim: What happens when someone inherits something they do not want?

July 25, 2024 | by Chepenik Trushin LLP

Florida law defines “Disclaimer” as “the refusal to accept an interest in or power over property.” Fla. Stat. § 739.102(5). Further, Florida law states “A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. A disclaimer shall be unconditional unless the disclaimant explicitly provides otherwise in the disclaimer.” Fla. Stat. § 739.104(1).

This statute grants people the power to refuse a devise under a will or inheritance under intestacy. Individuals can refuse assets, right of survivorship, powers of appointment, etc. There are a number of reasons one may wish to disclaim their interest in an estate, including tax avoidance, protecting assets against creditors, or for personal reasons. When an individual disclaims an interest, it is important to note that they do not have a power to direct who takes the disclaimed interested in their place, and rather that the operative instrument or default statutory provisions govern who is to receive a disclaimed interest.

In Gardner v. Richardson, Mr. Gardner’s trust granted a life estate in a home to Ms. Richardson and gave the remainder interest to his children. After Mr. Gardner’s death, Ms. Richardson cared for the property. She lived in the home, paid the taxes and utility bills, and took responsibility for paying a portion of the mortgage. She banned Mr. Gardner’s children access to the home and wrote to the trustee, Wayne Gardner, saying she planned to live in the house until she died. The trustee filed an action to determine whether Ms. Richardson or Mr. Gardner’s children were responsible for paying the mortgage principal and interest. After the court held that Ms. Richardson was responsible for paying the mortgage interest, she attempted to disclaim her life estate even after living in the home for about two years. The trial court held that the disclaimer was ineffective, and Ms. Richardson appealed. The appellate court affirmed the court below and held that the disclaimer was ineffective because Ms. Richardson continued to occupy Mr. Gardner’s property to the exclusion of others, knew of her liability for the property’s expenses, and belatedly attempted to disclaim her life estate interest. Gardner v. Richardson (In re Gardner), 283 P.3d 676, 676 (Ct. App. 2012).

Establishing a Lost or Destroyed Will

May 21, 2024 | by Chepenik Trushin LLP

As with any other physical object, wills may be subject to being inadvertently destroyed or lost. Either scenario may cause a variety of issues for the nominated personal representative and beneficiaries of the decedent. Even when taking steps to safeguard the original of a last will and testament, such as by keeping the document in a safe or in a safe deposit box, unexpected situations can and do arise, such as natural disasters, fires, or even third parties who intentionally destroy or steal the document. When this occurs (i.e., when you are no longer in possession of the original document), what steps can be taken to establish the validity of a last will or testament that has been lost or destroyed? The answer to this question will depend on a variety of factors.

In Florida, whenever an original will has been lost or destroyed, there is a presumption that the testator intended to revoke the will by destroying it, and the proponent of the will has the burden of proving the contrary. Under Florida Statute 733.207, “[a]ny interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate.” Additionally, “[t]he 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.”

In the case In re Estate of Parker, the original last will and testament of the decedent had been lost or destroyed. Nevertheless, the personal representative possessed an almost identical typewritten draft of the will. In this case, the Florida Supreme Court pondered on the issue of whether this typewritten draft would constitute a “correct copy” of the will pursuant to section 733.207 of the Florida Statutes. After considering the dictionary definition of the words “correct” and “copy,” the Court held that “the words ‘correct copy’ means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.” In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980).

Understanding Will Revocation in Florida: A Legal Overview

March 14, 2024 | by Chepenik Trushin LLP

In estate planning, the preparation of a will is a crucial step toward ensuring that your assets are distributed according to your wishes upon your death. However, circumstances, relationships, and intent may change over time, which may lead to the need to update, revise, or completely revoke previously drafted testamentary documents. There are different ways to achieve the revocation of an existing will. In Florida, this process is filled with specific requirements that must be met for the revocation to be valid. A testator may revoke a will in three ways: (1) by writing, (2) by physical act, and (3) by operation of law.

Revocation by writing is controlled by Florida Statutes section 732.505. Pursuant to the statute, a will or codicil, wholly or in part, is revoked in two ways: (1) by a subsequent inconsistent will or codicil, even if the subsequent will or codicil does not expressly revoke all previous will or codicils, to the extent that the subsequent will or codicil is inconsistent with the prior will, or (2) “by a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.”

Revocation by physical act is controlled by Florida Statutes section 732.506. Pursuant to the statute, a will or codicil, with the exception of electronic wills, “is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying It with the intent, and for the purpose, of revocation.” For electronic wills or codicils, revocation by physical act is effectuated by “deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.” Note that, unlike revocation by writing, a will or codicil cannot be partially revoked by physical act.