In short: In Mack v. Polsby (Fla. 3d DCA 2014), a daughter serving as her father’s guardian got court approval to create and fund a revocable trust with herself as trustee. After he died, her siblings sued. A successor judge dismissed, believing he couldn’t review his predecessor’s order. The Third District reversed: fraud on the court is reviewable under Rule 1.540(b), and the breach and removal claims were independent.
Guardianship orders can move family property in ways the rest of the family never sees coming. This case addresses how to challenge them.
The Facts
A daughter became her father’s emergency temporary guardian and then plenary guardian in 2010. On her emergency amended petition, the probate judge authorized her to create a revocable trust and move his Michigan real property into it, with herself as trustee and the four siblings as equal beneficiaries. The father died about two months later. Three siblings, representing themselves, sued to invalidate the trust, for breach of fiduciary duty, and to remove her as trustee. A successor judge dismissed, reasoning he couldn’t review the order a predecessor judge had entered creating the trust.
The Decision
The Third District reversed (No. 3D13-1227, Jan. 8, 2014), holding the trial court had jurisdiction over all three counts:
- Invalidating the trust: the siblings alleged the guardian didn’t serve them with the petitions and committed fraud on the court in obtaining the order. That claim falls within Fla. R. Civ. P. 1.540(b).
- Breach and removal: counsel for the trustee conceded at argument that these counts arose after the trust was created and were independent of it, so the court clearly could hear them.
At argument, which you can watch below, the bench separated the counts on the spot.
Why It Matters
- A guardian who uses court authority to restructure a ward’s estate owes duties to the ward and is accountable for how the order was obtained.
- Lack of notice to family members who are entitled to it is a serious problem.
- A successor judge isn’t powerless when fraud on the court is alleged.
Lessons
- If a guardian seeks to create a trust or change estate planning for a ward, interested family members should demand notice and appear.
- Claims for breach of trust and removal stand on their own and don’t require undoing the trust.
Source: Mack v. Polsby, No. 3D13-1227 (Fla. 3d DCA Jan. 8, 2014).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
A Successor Judge Said He Could Not Touch the Trust — Was That Right?
Go Deeper
- How to Contest a Guardianship in Florida: The Incapacity Hearing, Your Rights, and Restoration
- How to Contest a Trust in Florida: Deathbed Amendments, Undue Influence, and the 6-Month Clock
- When a Family Member Is Taking a Parent’s Money in Florida: Power of Attorney, Guardianship, and Exploitation
Frequently Asked Questions
Can a guardian create a trust for a ward in Florida?
With court approval, a guardian may be authorized to take estate planning actions, but must give proper notice and act for the ward.
Can a successor judge revisit a predecessor's order?
Yes, in the circumstances Rule 1.540(b) allows, including fraud on the court, as in Mack v. Polsby.
Can beneficiaries sue a trustee who was also the guardian?
Yes. Breach of fiduciary duty and removal claims are independent of how the trust was created.
What did the court decide in Mack v. Polsby?
The Third District reversed the dismissal in 2014 and held the trial court had jurisdiction over all three counts.
Talk to a Florida trust and guardianship litigation lawyer
Weidner Law, P.A. handles Florida trust disputes and probate appeals from St. Petersburg. If you need a trust litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
