DAVID ROBINSON, AS CO-PERSONAL REPRESENTATIVE OF THE ESTATE OF MARVIN L. ROBINSON AND CO-TRUSTEE OF THE MARVIN L. ROBINSON AMENDED AND RESTATED DECLARATION OF TRUST, APPELLANT,
v.
SAM TOOTALIAN, AS FORMER CO-TRUSTEE; PURDY, DONOVAN & BEAL, CERTIFIED PUBLIC ACCOUNTANTS; AND MARILYN Z. ROBINSON, AS CO-PERSONAL REPRESENTATIVE OF THE ESTATE OF MARVIN L. ROBINSON AND AS CO-TRUSTEE OF THE MARVIN L. ROBINSON AMENDED AND RESTATED DECLARATION OF TRUST, APPELLEES
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David Robinson appeals the probate court's removal of him as co-trustee of his brother's estate, claiming insufficient evidence. The court affirmed the removal, finding that the irreconcilable conflict between Robinson and his co-trustee Marilyn over trust administration, particularly regarding a malpractice claim against their accountant, impeded the estate's administration and justified removal.
The court affirmed David's removal, finding ample evidence that the irreconcilable conflict between the co-trustees was impeding the estate's administration and hampering litigation. The court reversed only the provision making the removal order nunc pro tunc to January 1994.
[1] A probate court may remove a co-trustee when disharmony between co-trustees impedes the administration of an estate or trust.
[2] Repeated resort to court action to resolve conflicts between co-trustees may warrant the removal of one or more trustees.
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Join FLexlaw to unlock all legal intelligence“When it is necessary to repeatedly resort to court action in order to resolve conflicts between co-personal representatives, the interests of the estate may best be served by removing one or both of the representatives.”
Establishes the legal standard for removal of co-trustees based on irreconcilable conflict
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Join FLexlaw to unlock all legal intelligenceMarvin L. Robinson named his wife Marilyn, brother David, and accountant Sam Tootalian as co-trustees. After Tootalian resigned, Marilyn and David con…
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KLEIN, Judge.
The decedent, Marvin L. Robinson, left a substantial estate in trust and named his wife Marilyn, his brother David, and his accountant, Sam Tootalian, as co-trustees. Tootali- an resigned leaving Marilyn and David to continue with the requirement that there be unanimity on all decisions. After much disagreement between the two trustees, the probate court removed David, and he appeals.
Much of the conflict revolved around the accountant, Tootalian. Marilyn had concluded that Tootalian had committed malpractice in regard to her husband’s affairs before his death as well as in regard to his accounting work for the estate and trust. David, who was using Tootalian as his own accountant, opposed any claims being made against Too-talian. Marilyn had also discharged the trust’s money manager; however, David wrote the firm and instructed it to disregard Marilyn’s letter of discharge.
Marilyn sought and obtained, over David’s objection, authority from the probate court to bring a malpractice action against Tootalian. David then disagreed with Marilyn’s choice of a law firm, and continued to oppose the bringing of the action. David wanted Toota-lian to continue to do work for the trust, and David filed accountings prepared by Tootali-an which were objected to by Marilyn.
Needless to say these disagreements resulted in the court having to become the third trustee, so to speak, in order for the trust to be administered.
Marilyn filed a petition seeking the removal of David as co-trustee, and after an evidentiary hearing the probate court found that the disharmony between Marilyn and David was impeding the administration of the estate, hampering the litigation involving Tootalian, and unnecessarily depleting the estate and trust. The court removed David, and he appeals, arguing that the evidence was insufficient. We disagree.
In Rand v. Giller, 489 So. 2d 796, 798 (Fla. 3d DCA 1986), the court noted:
When it is necessary to repeatedly resort to court action in order to resolve conflicts between co-personal representatives, the interests of the estate may best be served by removing one or both of the representatives.
See also Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933) (removal of a joint administrator is appropriate where there is irreconcilable conflict regarding the management of an estate).
We find ample evidence to support the removal of David, and conclude that the other issues he raises about his removal are without merit. Marilyn concedes that the court should not have made the removal order, entered in June 1996, nunc pro tunc to January 1994. We therefore affirm the order in all respects except for the provision making it nunc pro tunc, which is reversed.1
PARIENTE and SHAHOOD, JJ„ concur. . Orders are entered nunc pro tunc generally for the purpose of making effective a judicial act previously taken which is not apparent from the record. Applestein v. Alberring, 291 So. 2d 206 (Fla. 3d DCA 1974); Nichols v. Walton, 82 Fla. 385, 90 So. 157(1921).
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Robinson v. Robinson, 805 So. 2d 94 (Fla. 4th DCA 2002)…sive and adopt the additional findings of the probate court. AFFIRMED. KLEIN and STEVENSON, JJ., concur. . Robinson v. Robinson, 651 So. 2d 1271 (Fla. 4th DCA 1995); Robinson v. Robinson, 676 So. 2d 511 (Fla. 4th DCA 1996); Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997); In re Estate of Robinson, 720 So. 2d 540 (Fla. 4th DCA 1998).…
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Domingo Rodriguez, Jr. v. Palm Beach Cnty. Div. of Animal Care & Control, 988 So. 2d 738 (Fla. 4th DCA 2008)…nc pro tunc order may be used to correct the record of an order actually made, but perhaps entered “incorrectly in the court records or not entered at all.” In re Riha’s Estate, 369 So. 2d 404, 404 (Fla. 2d DCA 1979); see also Robinson v. Tootalian, 691 So. 2d 52, 52 n. 1 (Fla. 4th DCA 1997) (holding “[ojrders are entered nunc pro [*739] tunc generally for the purpose of making effective a judicial act previously taken which is not apparent from the record.”). In this case no ruling had been made on the moti…
Authorities Cited
- Morton C. Nichols v. Walton, 82 Fla. 385 (Fla. 1921)
- Henderson v. Ewell, 111 Fla. 324 (Fla. 1933)
- Rand v. Giller, 489 So. 2d 796 (Fla. 3d DCA 1986)
- Applestein v. Alberring, 291 So. 2d 206 (Fla. 3d DCA 1974)