During my Wills, Trusts, & Estates class tonight, we covered the sad case of Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. App. 3rd Dist. 1991). The father executed a will naming his three children at the time: Lisette, Natalie, and Gabriel. He then had a fourth child about a year later, Patricia. Two years later, he executed a codicil that did not name Patricia. When he died suddenly of a heart attack at the tender age of 38, the probate court held that the codicil republished the previous will and thus the pretermission statute didn’t apply to Patricia (it was deemed an intentional omission). Intentionally omitted children generally have no rights in the United States (excepting Louisiana).
Note: Following this case, Patricia’s mother brought a malpractice suit [Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993).] on her behalf. The court held that there was no privity between the attorney and Patricia, since she (a) wasn't the client and (b) wasn’t a clearly intended beneficiary in the will (!!), and thus had no standing. Love that circular logic:
"The lawyer screwed up the will and left me out."
"Yeah, but you can't sue him for it because you're not mentioned in the will."
The question was posed to the class, "Why would the Florida Supreme Court deny this little girl any opportunity to recover for the damage caused by the incompetent lawyers who drafted a codicil without including her in it?" According to our professor, the conventional wisdom is that Florida is notoriously protective of its lawyers, as evinced by the tortured reasoning in Espinosa. She then told us an illustrative anecdote.
She was involved in administering a multi-jurisdiction divorce judgment, with regard to the property located in D.C. The Florida attorney representing the man judged against was sleazy and slimy and, in the words of the professor, "made you want to spray yourself with Lysol after being in the room with him." When he appeared in court, he had a large cell-phone dangling from his hip and a shirt unbuttoned halfway down his chest.
Later on, she was talking to her Florida counsel for this divorce case, and he told her that the sleazy lawyer was in the Miami Herald.
She asked, "What'd he do, commit a double homicide?"
Florida counsel replied, "No, worse." That got her attention. He continued, "After being appointed guardian ad litem for a mentally retarded woman, he stole her money and took sexual liberties with her."
She expressed her disgust.
He said, "Wait, it gets better. I haven't told you his defense."
She said, "Defense?"
He said, "He said he had hemorrhoids."
"He said that the medication he was taking affected his ability to reason."
The worst part of the story was the punishment he received from the Florida Board of Professional Responsibility; a 90-day suspension from the practice of law.
She then told the class that there was a earthy young associate in her office who would suggest, whenever he heard about indefensible behavior, that the accused should use the "bloody asshole defense."
Hey, it worked in Florida.