By: David M. Garten, Esq.

ARTICLE: Indispensible Parties To An Action To Set Aside Inter Vivos Transfers

An estate is not an indispensible party to an action to set aside an inter vivos transfer. See, Parker v. Parker, 2016 Fla. App. LEXIS 1441(Fla. 4th DCA 2/3/16).

In Parker, the decedent’s children from a former marriage sued in the civil division to vacate certain inter vivos transfers by their father to their half-brother fifteen days before his death. Their allegations included tortious interference with inheritance, unjust enrichment, and replevin to recover the properties as well as certain personal possessions and documents belonging to the decedent. The trial court dismissed their complaint with prejudice for failure to join the decedent’s estate as an indispensable party to the action pursuant to §733.607, F.S.  The children subsequently notified the trial court that they had opened the estate and requested permission once again to amend the complaint. Specifically, they sought leave to add the PR and to transfer the case to the probate division for resolution. The trial court denied their motion without explanation.

The appellate court reversed the dismissal with prejudice and held that because the decedent transferred the subject properties prior to his death, the estate is not an indispensable party pursuant to §733.607, F.S.  The court reasoned that this statute clearly states that a personal representative has rights to property that remains in the decedent’s possession at death. However, the subject properties at issue were not part of the decedent’s estate at the time he died because they had already been conveyed inter vivos.  In addition, the court cited to numerous cases where the courts permitted a party to pursue claims to set aside inter vivos conveyances based upon allegations of undue influence without requiring that the decedent’s estate be joined as a party to the suit.

Comments: Does Parker absolve the PR of a duty to investigate and possibly recover inter vivos transfers? How do you reconcile §733.607 with §733.309 which reads in part: “…any person taking, converting, or intermeddling with the property of a decedent shall be liable to the PR or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action.”?

In my article “Defenses To A Claim For Tortious Interference With An Expectancy In Probate & Trust Proceedings” (August 2013 issue), I discussed the following two defenses that could be raised in response to a claim for tortious interference with an expectancy:

  1. Have you exhausted your probate remedies? If adequate relief is available in the probate proceeding, you must exhaust your probate remedies before a tortious interference claim can be pursued. See, DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981).
  2. Is your claim ripe? In Children’s Hospital, Inc. v. Owens, 754 So.2d 802 (Fla. 2nd DCA 2000), appellants were eight of twenty-eight charities among the residual beneficiaries of decedent’s will. Appellant/charities filed a civil suit against the decedent’s caretaker for a constructive trust and tortious interference. The caretaker was granted summary judgment. The appellate court affirmed, finding that if the charities could ever pursue a claim for tortious interference, the claim had not yet accrued because the estate administration was still pending, so the charities had not yet been damaged. The court also concluded that any attempts to retrieve estate property from the caretaker should be left to the administrator ad litem through proceedings in probate because the administrator ad litem can pursue claims for the benefit of all recipients under the will and that the charities’ action either duplicates those efforts or is an attempt to gain an advantage over the other beneficiaries.

Does Parker eliminate these as potential defenses?