3d DCA: Can you decide a virtual adoption claim before you fully litigate a related will contest?
McMullen v. Bennis, --- So.3d ----, 2009 WL 2837426 (Fla. 3d DCA Sep 2, 2009)
In the linked-to case a will was being contested by a party claiming a stake to the estate as a "virtually adopted" heir. (For an excellent explanation of what the virtual adoption doctrine is and how it works, see Virtual Adoption: Not Just for Netizens [click here]).
If the will contestant in this case successfully set aside the will but lost on her virtual-adoption claim, she would still end up with nothing. Apparently hoping to avoid the expense and delay of a potentially meaningless will contest, the contestant asked the court to rule on her virtual adoption claim up front, prior to adjudicating the will contest. Makes sense to me; and apparently it made sense to the probate judge as well, because she granted that request and ruled in her favor on the virtual adoption claim. Bad idea, says the 3d DCA; here's why:
The parties admit there is a will of record purportedly executed by the decedent, and that they are poised to engage in a contest over its validity if necessary. But, because they are of the opinion that obtaining a final determination on Bennis' petition for determination of beneficiaries is less labor intensive for them and, by their reckoning, would be dispositive of the final distribution of estate assets, they asked the trial court to adjudicate the virtual adoption question before considering the validity of the will. The trial court acceded to the request.
Upon our review, we decline to accept the “reckoning” of the parties as to the ultimate distribution of the assets of this estate. Much can occur in a probate proceeding between any particular point in time and a final distribution order . . .
* * * * *
In this case, the validity of the decedent's will is unresolved. Whether Bennis is a virtually adopted daughter becomes material to the probate proceeding only if the decedent's will is invalid. Consideration of the validity of the decedent's will necessarily must be the court's first order of business. If the court determines the will is invalid, Bennis then may proceed as she deems appropriate.
Order vacated without prejudice and case remanded for further proceedings.
Did the 3d DCA get this one right?
The basis for the 3d DCA's ruling in this case appears to be its conclusion that the virtual-adoption question "becomes material to the probate proceeding only if the decedent's will is invalid." As explained in Virtual Adoption: Not Just for Netizens [click here], being someone's "heir" has all sorts of implications in a probate proceeding:
"[V]irtual adoption is intended to put the virtually adopted person in the same position as that of a person naturally born of or formally adopted by the decedent as that relationship is affected by the intestacy statutes. Such a status would necessarily include not just inheritance rights, but [all] the rights, duties, and obligations inherent in administering the estate of an intestate parent, particularly the right to preference in appointment as personal representative under the Florida Probate Code."
In short, a the probate judge's virtual adoption ruling in this case was NOT material "only if the decedent's will is invalid." Until the will challenge is resolved, the court's ruling is potentially material to ALL aspects of probating this estate. This point was either missed by the 3d DCA or simply not reflected in its opinion.
It is kind of tough to tell from 3rd DCA's opinion; and there might be something going on that's not disclosed in it, but it does seem to me that they needed to determine whether the woman was 'virtually adopted' prior to deciding will contest in order for her to have standing to contest the will in the first place. It doesn't appear as though she was arguing dependent relative revocation (beneficiary under prior will) or contractual rights and IF she wasn't virtually adopted, then what standing would ahe have to contest the will in the first place? The lawyers and the trial judge probably should have framed the question as one of standing (we need to determine whether or not she can even bring a will contest as a predicate to deciding the validity of the will) rather than judicial economy (it is simply easier and quicker to determine whether she was virtually adopted rather than the validity of the will).
In other words, what happens if 1) you decide the validity of the will, first, find that it's invalid, THEN 2) find she wasn't virtually adopted, and didn't have standing to contest the will in the first place? What does that do to the finding that the will is not valid? I don't know, but it would be messy, to put it politely.
Hi Ronald - I agree with you on both points. The 3d DCA likes to keep its opinions short and to the point, so who knows what else was going on this case under the surface. But I also think your comment regarding "framing" is right on. If the parties had framed the issue differently, perhaps the 3d DCA might have come to a different conclusion. My sense is only rarely will appellate courts “reframe” the issues at play in a case. Generally speaking, they address the issues as framed by the parties . . . rightly or wrongly. Again, this is not a criticism of anyone involved in the case, just a general observation from someone who’s only knowledge about the case comes from reading the 3d DCA’s opinion. Regards. Juan