Florida Probate & Trust Litigation Blog : Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

Donkersloot v. Donkersloot, --- So.2d ----, 2008 WL 4647415 (Fla. 2d DCA Oct 22, 2008)

Civil Procedure Rule 1.525 governs the mechanics of attorney's fee motions in general commercial litigation.  Here's what the rule says:

Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

There's been confusion for some time as to how exactly this general rule should apply (if at all) within the unique context of a contested probate or trust proceeding. In an effort to address this problem a subcommittee of the Florida Bar's Probate & Trust Litigation Committee composed of  Angela Adams, Laura Sundberg and Eric Virgil has been looking into what sort of legislative fixes could be adopted to provide clarity on the issue. Regardless of what comes of their efforts, the subcommittee's latest written report is an excellent analysis of the rule as it applies (or should apply) in trust proceedings, and a great resource for any trusts-and-estates litigator confronted with a Rule 1.525 issue in real life [click here for a copy].

In light of this background the linked-to opinion is especially timely in that the 2d DCA seems to sanction application of Rule 1.525 in a contested trust proceeding.  According to the subcommittee's report I previously mentioned, this would be the first time a Florida appellate court addresses the application of Rule 1.525 within the context of a trust proceeding. So you may want to remember this case for future reference.

Anyway, in this case the 2d DCA reversed a $195,000 attorneys fee judgment entered against two co-trustees because the fee motion had only sought fees against one of the co-trustees.  Because Rule 1.525 requires the filing of a fee motion as a predicate to a judgment for fees, this was reversible error.  Here's how the 2d DCA explained its ruling:

Prior to the motion hearing, counsel for Mr. Donkersloot and Johannes Donkersloot stipulated that neither Mr. Donkersloot nor his counsel needed to be present. Mr. Donkersloot's counsel attended the hearing briefly, alerted the trial court to the stipulation, and, with leave of court, left the hearing. As the hearing progressed, Johannes Donkersloot, in response to trial court questioning, opined that the trial court “in equity” could award fees and costs against Mr. Donkersloot. Several months later, the trial court entered the amended final judgment awarding almost $195,000 in attorney's fees, costs, and interest against Ms. Hall and Mr. Donkersloot, jointly and severally. On rehearing, the trial court rejected Mr. Donkersloot's argument that the fees could not be imposed absent a proper motion. The trial court concluded that the award was warranted against Mr. Donkersloot as part of the “action in equity.”

Once a party pleads entitlement to attorney's fees, proof of the fees may be presented after final judgment upon motion made within a reasonable time. Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991). However, a trial court may not award relief that has not been requested nor tried by consent. Conidaris v. Cresswood Servs., Inc., 779 So.2d 518, 519 (Fla. 2d DCA 2000) (holding that trial court was without authority to order owners to pay where equitable remedy was neither sought nor tried by consent).

Florida Rule of Civil Procedure 1.525 dictates that a party seeking an award of attorney's fees or costs must serve a motion requesting them within thirty days after entry of the judgment. Undisputedly, Johannes Donkersloot filed a timely motion. His motion did not seek fees from Mr. Donkersloot, nor was the motion served on him. Equally clear is the fact that, by stipulation, neither Mr. Donkersloot nor his counsel needed to be present at the hearing on attorney's fees and costs; there was no trial by consent. Nor was the fee award an action that the trial court could make “in equity.” Equity does not breathe into a rule 1.525 motion unrequested relief. See generally Gulf Landings Ass'n, Inc. v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003) (holding that rule 1.525 is a bright-line rule and eschewing equitable exceptions). Accordingly, we reverse the award of attorney's fees and costs as to Mr. Donkersloot.

• Email This
• Print
• Comments
• Trackbacks

Brown v. Miller, --- So.2d ----, 2008 WL 4600940 (Fla. 5th DCA Oct 17, 2008)

In trust construction litigation the litigants are asking the judge to read the trust agreement and tell them what it means. In this type of litigation you often have the choice of allowing the court to rule on the trust agreement without taking any evidence or pressing for a trial on the merits. For example, if one side files a summary judgment motion, the other side can either: (1) object on the grounds that there are genuine issues of material fact in dispute (i.e., argue a full-blown trial is needed) or (2) file its own counter summary judgment motion and let the trial court dispose of the case without the need of taking evidence.

Why might you opt for the first approach? Because you basically get a second bite at the apple if you lose before the trial court and appeal your case.  Why do you get a second bite at the apple? Because the standard of review on appeal in a case where the issue is limited to a trial court's interpretation of a trust agreement without relying on extrinsic evidence is de novo, a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again." In other words, the appellate court can read the document itself and come to its own conclusions, without any of the deference usually extended to findings of fact by trial courts.

As reflected in the following excerpt from the linked-to opinion, on appeal both sides agreed that the standard of review for this case was de novo.

Here, we agree with both parties that the interpretation of the Elinor Miller Trust documents is a question of law which is entitled to de novo review. See Fleck-Rubin v. Fleck, 933 So.2d 38, 39 (Fla. 2d DCA 2006); Gallagher v. Dupont, 918 So.2d 342, 346 (Fla. 5th DCA 2005).

Based on this appellate standard of review the losing side in this case was able to get the 5th DCA to take a fresh look at the contested trust agreement and deliver the win it didn't get at trial. Here's the contested trust-agreement clause and how the 5th DCA explained its ruling:

Contested trust agreement clause:

With respect to Trust “A-1” and Trust “A-2”, the Trustee shall pay quarterly or oftener, the entire net income derived from the trust estates to my husband, THOMAS W. MILLER, JR., so long as he shall live. In addition thereto, the Trustee shall pay to my husband, THOMAS W. MILLER, JR., such amounts from the principal of Trust “A-2” first and then from “A-1” after the exhaustion of “A-2”, as it deems necessary or advisable to provide liberally for his maintenance, health, and support in his accustomed manner of living, taking into account all of his other income and means of support known to the Trustee. The Trustee shall also pay to my husband such additional amounts of principal from Trust “A-2” as he may from time to time request....

Ruling:

Tom argues that Elinor only authorized transfers from Trust A-2 to “my husband.” Based on this argument, Tom contends that the transfer to the Bill Miller Trust was invalid because Elinor was “not married” to the Bill Miller Trust. Appellants respond that the Bill Miller Trust was an irrevocable trust and, accordingly, a conveyance to the Bill Miller Trust was equivalent to a transfer to Bill Miller. We agree with Appellants. It is undisputed that Bill maintained 100% control over the Bill Miller Trust assets. Furthermore, he had the right to end the trust at any time and thereby regain absolute ownership over the trust property. Florida Nat'l Bank of Palm Beach Co. v. Genova, 460 So.2d 895, 897 (Fla.1984). Thus, Bill had complete and unfettered access to the seven million dollars conveyed into his trust. In construing the provisions of a trust document, the cardinal rule is to give effect to the grantor's intent, if possible. Knauer v. Barnett, 360 So.2d 399, 405 (Fla.1978). We believe that in authorizing transfers of Trust A-2 assets to her husband, Elinor clearly intended to permit transfers to an entity, such as an irrevocable trust, over which her husband retained complete control and the right to absolute ownership.

• Email This
• Print
• Comments
• Trackbacks (1)

Urbanek v. Hopkins, --- So.2d ----, 2008 WL 4489266 (Fla. 4th DCA Oct 08, 2008)

What this case is really about is good lawyering. Miami probate litigator David H. Goldberg was hired to represent an 88-year old man suffering from Parkinson's disease who had the misfortune of getting sucked into trust litigation he didn't start and wasn't a party to. The trustee/defendant in this case decided he needed to depose this poor guy, and come hell or high water, the Broward County probate judge adjudicating this matter was going to make sure he got his way.

I don't know David Goldberg, but I think his work in this matter is a case study in effective advocacy and hope someone let's him know I said so.

GOOD LAWYERING

• Action:

The trustee/defendant in this case sought to take an oral deposition of August Urbanek, the 88-year old grantor of the irrevocable trust at the center of this case and the father of the trust-beneficiary who's the plaintiff in this case.

• Reaction:

David Goldberg filed an objection to the deposition on the grounds of age, health and privacy. In support of his objection, Goldberg filed a detailed affidavit from a physician specializing in neurology, having specific knowledge about the grantor-father's condition concluding that the proposed deposition “would have detrimental effects on his Parkinson's disease” and his health would be “severely impacted.”

It's unclear from the linked-to opinion, but Goldberg apparently then also filed a motion to limit his client's deposition to written questions.

• Action:

In response to Goldberg's motion, the trial court ordered the grantor-father and his physician to appear in court for a hearing on the grantor-father's medical condition. In spite of the affidavit establishing danger to the grantor-father's health from being forced to appear for a deposition, the judge nevertheless insisted that he come to court to testify. The judge rejected the alternative of first permitting only a written deposition. The judge also failed to ascertain how any testimony of the grantor-father might be relevant or lead to relevant evidence.

• Reaction:

Goldberg immediately filed a motion seeking to have the hearing on his client's medical condition conducted by telephone.  On the day of the hearing, Goldberg showed up in court without his client explaining, again, that if his client were required to be there in person his health would be “severely impacted.”

• Action:

Apparently getting a little pissed off by now, the court ordered the grantor-father to submit to a compulsory medical examination by a physician chosen by the trustee within the next 30 days. At this point I think it's important to say again that the grantor-father was not a party to this lawsuit. What happened to him could have conceivably happened to any bystander the parties to the lawsuit took it upon themselves to decide was a necessary witness: a lawyer says he wants to depose you, you say no for medical reasons and "presto," a judge is ordering you to surrender all of your personal privacy rights and submit yourself to a physical examination by a doctor not of your own choosing. Am I the only one who finds this entire situation more than a little scary?

• Reaction:

Goldberg filed a petition for writ of certiorari asking the 4th DCA to quash the trial court's compulsory-medical-examination order.

THE LAW

Based on this record (again, the product of good lawyering), the 4th DCA made short work of the probate court's order, quashing the directive requiring an examination of the grantor-father and requiring any deposition of the grantor-father to be limited initially to written deposition questions.  For future reference, here's the legal reasoning underlying the 4th DCA's ruling:

• Probate court lacked authority to sanction witness:

The grantor-father was never served with a subpoena to appear, and the court made no finding of contempt for the personal failing of the grantor-father to attend the hearing. See Pevsner v. Frederick, 656 So.2d 262 (Fla. 4th DCA 1995) (sanctions may not be imposed against nonparty for discovery violation in absence of finding of contempt). The affidavit of the personal physician raises substantial doubts as to whether the grantor-father was even physically capable of appearing personally for a deposition or in court. In the absence of contempt, under our Pevsner decision the trial court had no authority at this point to impose any sanctions on the grantor-father. Id.

•  Grantor-father was entitled to a protective order based on his affidavit:

As to the compulsory medical examination (CME) of the grantor-father, the trial judge overlooked the burden placed by Florida Rule of Civil Procedure 1.360 on the proponent of a CME. Under the rule, the party seeking a CME must show that the person to be examined is a party in the litigation who has himself placed his physical condition at issue. The party seeking the CME must establish good cause for such an exam. Here the trial judge should have first required written deposition questions of the grantor-father. Before the trustee could thereafter show good cause for a CME, he would thereupon have to show why the results of the written deposition failed to furnish the relevant information sought from the grantor-father.

Without a showing of good cause, the burden never shifted to the grantor-father to sustain his objection to the CME, and the grantor-father was entitled to a protective order on the basis of his physician's affidavit. See Olges, 856 So.2d at 11 (“But the question of protective rules or protective orders never arises and the burden never shifts unless the proponent of the examination shows good cause for an examination in the first place.”). “Good cause” for such an examination is not made on the basis of conclusory allegations or assertions of counsel. See Fruh v. Dept. of Health & Rehab. Serv., 430 So.2d 581 (Fla. 5th DCA 1983) (two requirements of “in controversy” and “good cause” not met by mere conclusory allegations in pleadings, nor by mere relevance to case, but require affirmative showing by movant that each condition as to which examination is sought is really and genuinely in controversy).

THE OTHER SIDE OF THE STORY

This is the first time I’ve ever done this, and I don’t plan on doing it again. However, because I laid it on so thick in favor of David Goldberg, I think it’s only fair to “even out” the coverage (if only to make sure David’s head doesn’t get too big). Below is a redacted version of a comment I received in response to this blog post.

But first an explanatory note. The linked-to opinion is only four pages long, and of those four pages the “facts of the case” represent only a few paragraphs. When the 4th DCA was drafting its opinion I assume they only focused on the facts most relevant to their legal conclusions. They have limited resources, and there’s no sense in making the opinion any longer than it needs to be. However, a byproduct of the court’s editing process is that most, if not all, of the “facts” supporting the losing side of this appeal probably didn’t make it into the published opinion. These facts may not have been directly relevant to the outcome of the appeal, but perhaps they would have cast a completely different light on this case, perhaps a light less favorable to the winning side. The point is I don’t know, and it’s simply impossible for me to read each side’s appellate briefs before writing about the published appellate opinion.

Note to self and blog readers: Remember there’s always multiple sides to every story, and the side that makes it into the published appellate decision may not always be the one closest to the "truth".

"What this case is really about is permitting an 88 year old man to be fleeced by his son who is involved in litigation over the irrevocable trust established by his father a number of years ago. By taking advantage of a vulnerable adult, the son is taking funds from his father outside of the trust and is now using that money to sue on the trust as well. The issue is whether the Court had the authority to order a independent medical examination of the 88 year old to give a deposition raised by the son and then the gentlemen's counsel. I think your statements on the support of the decision are wrong and defeat the protection of vulnerable adults."

Again, if anyone has any other comments they’d like to share regarding this case, please post them on the comment page to this blog post.

• Email This
• Print
• Comments
• Trackbacks

Duncombe v. Adderly, --- So.2d ----, 2008 WL 4489234 (Fla. 4th DCA Oct 08, 2008)

If a beneficiary of an estate wants to get his attorney's fees paid with assets of the estate, the statute he'll have to hang his hat on is F.S. 733.106(3), which provides as follows:

(3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.

The big question under this statute is always: what's it mean to "render services" to an estate? In the linked-to case the probate court ruled that the winning side in litigation involving who gets appointed personal representative didn't qualify for fees under F.S. 733.106(3). Wrong answer. Here's how the 4th DCA summarized the law on this point in its reversal of the probate court's order denying attorneys fees:

Duncombe . . . sought attorney's fees incurred during these proceedings under section 733.106(3), which provides “any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” The trial court believed that there had to be an enhancement in value or an advancement of the testator's intent as set forth in the will, citing Samuels v. Estate of Ahern, 436 So.2d 1096, 1097 (Fla. 4th DCA 1983), . . .

We do not read Samuels that narrowly. Preventing the appointment of a personal representative named in the will is a basis for the award of attorney's fees, Baumer v. Howard, 542 So.2d 400 (Fla. 1st DCA 1989), as is obtaining the removal of a representative, In re Estate of Eisenberg, 433 So.2d 542 (Fla. 4th DCA 1983).

Appellees argue that we should affirm because no abuse of discretion has been demonstrated, but that is not the standard of review. Under the undisputed facts in this case, neither Adderly, a transferee of some of the property, nor her lawyer, could have served as personal representative if an interested party objected. The error in this case involved the interpretation of the words “benefit to the estate” in section 733.106(3). We review statutory interpretation de novo. San Martin v. DaimlerChrysler Corp., 983 So.2d 620 (Fla. 3d DCA 2008). Reversed.

• Email This
• Print
• Comments (1)
• Trackbacks

Eichler v. Leshner, Slip Copy, 2008 WL 4459029 (M.D.Fla. Sep 29, 2008)

In the linked-to case the beneficiary of a trust tried to sue the trust's investment manager for having "failed to properly invest trust assets."  The defendant's filed a motion to compel arbitration based on an arbitration clause contained in the account agreement signed by the trustee. The trust beneficiary/plaintiff in the current litigation was not a signatory to this agreement.

Compelling arbitration by non-signing trust beneficiaries:

I've written before about the "virtual representation" doctrine and how it can serve to bind beneficiaries to a court-approved settlement agreement [click here].  The virtual-representation doctrine has been codified - and expanded - under Florida's new Trust Code.  Which is why I would have assumed that the binding effect of the arbitration agreement at issue in this case would have been upheld by reference to section 736.303(3) of Florida's Trust Code, which provides as follows:

To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute .  .  . (3) A trustee may represent and bind the beneficiaries of the trust.

But that's no what happened, instead the court relied on an equitable estoppel argument to bind the trust beneficiary/plaintiff to the arbitration agreement signed by his trustee and the defendant. Here's how the court summarized the general rules for deciding when parties who didn't sign an arbitration agreement can nevertheless be bound by its terms:

Although arbitration is a contractual right that is generally predicated on an express decision to waive the right to trial in a judicial forum, the lack of a written arbitration agreement is not necessarily an impediment to arbitration. Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 756-57 (11th Cir.1993). Certain limited exceptions, such as equitable estoppel, allow nonsignatories to a contract to compel arbitration. MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999). A second exception exists when, under agency or related principles, the relationship between the signatory and nonsignatory defendants is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying arbitration agreement between the signatories be avoided. Id. (citing Boyd v. Homes of Legend, Inc., 981 F.Supp. 1423, 1432 (M.D.Ala.1997). A third exception applies when the parties to a contract together agree, upon formation of their agreement, to confer certain benefits thereunder upon a third party, affording that third party certain rights of action under the contract. Id.

Why didn't the litigants and/or the court even mention section 736.303(3) of Florida's Trust Code? Perhaps the defendants were not confident the court would agree to extend the virtual-representation doctrine to the transactional context. The virtual-representation doctrine is a solution developed by courts for application specifically within the litigation context. Extending this doctrine to arbitration agreements (or any other contractual transaction) is a significant step. In his recently published article entitled, SERVE THE CHEERLEADER – SERVE THE WORLD: REPRESENTATION IN ESTATE AND TRUST PROCEEDINGS AND UNDER THE UNIFORM TRUST CODE AND OTHER MODERN TRUST CODES, Professor Martin D. Begleiter specifically addressed this point as follows:

We have noted that the purposes of the representation doctrines are necessity that cases proceed where unborns are necessary parties and convenience in avoiding the expense of a guardian ad litem. The concerns are to obtain jurisdiction over unborns and persons under disability or dispense with such persons as parties and bind such persons to the result of the judicial proceeding. To go beyond this to bind such persons in a transactional context is a large and significant step. It is one thing to bind someone to a court decision on an issue of law or fact. It is quite another to say that, where voluntary action of a person is required to effectuate an outcome, that such action of another person shall be treated as consent by the person under a disability or the unborn. While the importance to the living parties and the resolution of disputes may justify the representation doctrine in court cases, it is difficult if not impossible to apply such a rationale where affirmative action by a person, such as consent or execution of a release, is required for the desired result. Nevertheless, in a scattering of cases, courts have used virtual representation to attribute such consent to parties who never consented.

Lesson learned?

Until we have a body of common law interpreting and applying the Florida Trust Code, a belts-and-suspenders approach is probably a good idea when litigating any of the Trust Code's more controversial provisions. I think the arbitration issue in this case could have been decided by simply citing to section 736.303(3) of Florida's Trust Code. But then again, maybe this particular judge wouldn't want to be the first to rely on this particular new statute to extend the virtual-representation doctrine beyond anything otherwise permitted under pre-code common law. Since no one can predict with 100% certainty how any judge will rule, citing to well-settled, general principals of law for binding non-signatories to arbitration agreements was probably a good idea. In other words, if there's more than one winning argument, it usually doesn't hurt to include all of them in your brief and let your judge pick the one he or she likes best.

• Email This
• Print
• Comments
• Trackbacks

Balboni v. LaRocque, --- So.2d ----, 2008 WL 4414240 (Fla. 4th DCA Oct 01, 2008

The absence of supporting evidence is a recurring theme when it comes to appellate reversals in probate litigation [click here].  In this case the issue was whether the proponents of a lost will had overcome the presumption that the will was intentionally destroyed.  As I've written about before, the law in Florida is that a will that was in the possession of the testator before his death and that cannot be located after his death is presumed to have been destroyed by the testator with the intention of revoking it [click here].

In the linked-to opinion the 4th DCA summarized the evidence past courts have held is sufficient to overcome the presumption that a lost will was intentionally revoked as follows:

Evidence that can serve to rebut the presumption of intentional revocation of a lost will consists of evidence that the will was either accidentally lost or destroyed, or willfully and fraudulently destroyed by an adverse party. Id. In several cases, Florida courts have found the presumption of intentional revocation to be rebutted by a showing of: 1) evidence that a person with an adverse interest, and the opportunity, may have destroyed the will, see In re Estate of Washington, 56 So.2d at 547; Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla. 5th DCA 1996); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979); 2) evidence that the will was accidentally destroyed, see In re Estate of Carlton, 276 So.2d at 833 (presumption was rebutted where decedent repeatedly spoke of his will and his intention to leave his estate to the petitioner, although the decedent's safe was found waterlogged and the papers inside turned to “mush”); 3) evidence that the original will had been seen among the decedent's papers after her death, see Silvers v. Estate of Silvers, 274 So.2d 20 (Fla. 3d DCA 1973); and 4) evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the will, see In re Estate of Niernsee, 2 So.2d 737 (Fla.1941).

No Evidence + Speculation & Conjecture = Reversal

The big problem for the lost-will proponents in the linked-to case was that they had all sorts of plausible sounding theories for why the lost will should be admitted to probate . . . but NO EVIDENCE to back them up. Here's how the 4th DCA explained that not having evidence in support of your arguments can be a problem (yes, even in probate proceedings):

In the instant case, the evidence relied upon-the mirror-image wills of Bill and Charlotte, the decedent's longstanding testamentary scheme, the discord between the decedent and granddaughter Kim, and the presence of nurses and visitors in the home-is simply not sufficient to overcome the presumption that the decedent intentionally revoked his will at some point in time prior to his death. Since it was undisputed that Charlotte predeceased her husband, the evidence that her will was found is not material. Likewise, evidence of a decedent's fondness of someone or, in this case, a lack thereof, is not material to the question of revocation. See id. at 43. Further, the fact that people with no interest in the will had the opportunity to accidentally destroy it and “might possibly have done so obviously is no evidence whatever that they did.” Id. We therefore conclude that here, as in Baird, the petitioners have failed to rebut the presumption of revocation with competent substantial evidence and instead have “presented no more than the fabled twins of speculation and conjecture to establish that [the decedent] might not have revoked his will.” Id. at 43-44.

• Email This
• Print
• Comments
• Trackbacks

McCormick v. McCormick, --- So.2d ----, 2008 WL 4377136 (Fla. 1st DCA Sep 29, 2008)

Florida probate judges are given a great deal of latitude when making calls on how an estate should be administered.  But there's one estate-administration issue over which their authority is severely limited: whether or not to appoint the personal representative nominated in a decedent's will.  For some reason this bit of Florida law is often overlooked [click here, here].

But what if a different PR is appointed before the decedent's will is found? Does the originally appointed PR get to stay on even if he's not the person nominated in the decedent's later-discovered will?  You can see why a well-intentioned probate judge might be tempted to leave well enough alone.  If the originally-appointed PR is doing a tolerably good job, why upset the apple-cart by booting him out midway through the estate administration and appointing his allegedly discombobulated half-brother for no other reason than he's the guy nominated as PR in the decedent's will?

In the linked-to opinion the probate court decided to leave well enough alone and was reversed for doing so; underscoring, once again, the amount of deference Florida law gives to a person's choice of personal representative.  Unless the nominated PR is disqualified as a matter of law: he's in, end of story.  Here's how the 1st DCA stated the point:

As provided by section 733.301(1)(a), Florida Statutes (1999), when granting letters of administration, the probate court shall, in testate estates, allow preference to the personal representative nominated by the will. “Nothing in section 733.301(1)(a) purports to vest discretion in the trial courts to disregard the preference there specified, as long as the personal representative nominated by the decedent is statutorily qualified to serve.” Warner v. Estate of McCloskey, 943 So.2d 1007, 1008 (Fla. 1st DCA 2006).

We acknowledge that during the hearing below, counsel for appellee advanced arguments that appellant should not be appointed to act as personal representative due to allegations of certain conduct by appellant after the death of McCormick, Sr. The probate court did not, however, base its order upon any ground other than the timeliness of appellant's counter-petition for administration. This ground, as we have previously observed, is not valid. Pursuant to section 733.301(6), Florida Statutes (1999):

After letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate the letters shall be revoked and new letters granted as provided in subsection (1).

Accordingly, we find that the controlling statutes anticipate a situation such as occurred in the present case. Although letters of administration issued during administration of an apparently intestate estate, such letters must be revoked “when a later discovered will is admitted to probate.” Fouraker v. Carter, 507 So.2d 749, 750 (Fla. 5th DCA 1987). “Upon admission of the will, the personal representative nominated by the will is entitled to preference of appointment.” Id.

• Email This
• Print
• Comments (1)
• Trackbacks