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Wednesday, July 31, 2013

EMPLOYMENT CANNOT BE DEVISED [FLORIDA]

Estate planners often have clients that want to include directions in their wills and trusts that don’t directly relate to dispositions of assets. Such “dead hand” attempts to control events from the grave can at times be challenged on public policy grounds.

In a recent 4th DCA case, a decedent included a provision in a codicil to his last will, requiring employment of his son after the decedent dies by a corporation controlled by him (he owned 100% of the stock). Besides ruling against the son that the language relating to lifetime employment was only precatory, the court found that even if it was not precatory it was unenforceable since it conflicts with the fiduciary duties of the officers and directors of the corporation.

A testamentary direction to guarantee Thomas employment within the company, regardless of circumstances or detriment to the corporation, could compel the violation of fiduciary duties of the officers and directors to the corporation. This would be a violation of statutory duties and the public policy behind them.

Interestingly, in support of its conclusion the DCA noted two Florida cases that voided directions in a will to a personal representative to hire a specific lawyer and to hire a specific real estate agent to assist in estate administration - In re Estate of Marks, 83 So. 2d 853 (Fla. 1955) and In re Estate of Fresia, 390 So. 2d 176 (Fla. 5th DCA 1980). These cases provide that a will provision cannot compel a personal representative to hire a specific person who would be acting in a fiduciary capacity because of the confidential relationship between the personal representative and a fiduciary. How many last wills have you seen that direct appointment of an attorney for the estate? I know I’ve seen more than one!

THOMAS GRANT, Appellant, v. BESSEMER TRUST COMPANY OF FLORIDA, INC., as personal representative of the Estate of Milton Grant, Appellee. 4th District. Case No. 4D11-3614. July 3, 2013

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