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

Garcia v. Celestron, --- So.2d ----, 2009 WL 249211 (Fla. 3d DCA Feb 04, 2009)

In the linked-to opinion the 3d DCA provides a solid summary of the procedural steps and law governing adjudications of ambiguous wills in Florida. This is a bread-and-butter issue for most probate litigators, so it’s helpful to have an appellate opinion you can whip out for your judge or opposing counsel if anyone needs a quick refresher course on how these cases should be handled.

Step One: The court needs to rule on whether the disputed provisions of the will are ambiguous:

We affirm the trial court's ruling that the disputed provisions of the will are ambiguous . . . The will left the decedent's house to his widow, and should she predecease him, the property was to be divided among six named family beneficiaries. The will then provides as follows:

I further leave a life estate in said property to my daughter, Mercy Maqueira [Mercy Garcia], so that she may live in and enjoy this property.... Upon her death, the property shall be sold and the proceeds divided equally among those living at the time of my death so named herein.... If Mercy so desires, she may sell this property at anytime and divide the proceeds as above stated.

Step Two: If the will’s ambiguous, you’re entitled to present parole evidence at trial to determine it’s meaning:

The question presented to the trial court was whether the language “so that she may live in and enjoy this property” made the life estate determinable, requiring Mercy to either live in the property or sell it, or whether the term is one of clarification, allowing her to choose whether to live in it or not. The trial court concluded that these terms taken together are ambiguous and took evidence to determine the testator's intent. Based upon the evidence, the trial court concluded that the decedent intended that Mercy be provided with a place for her and her children to live, and that if Mercy did not live in the property, it should be sold and the proceeds equally distributed among the six listed beneficiaries. Evidence adduced at trial revealed that Mercy did not live in the house, but rented it out, and that she had no intent to live there. The trial court ordered the property to be sold because Mercy did not live in it and evidenced no intention to live in it in the future. Mercy Garcia appealed.

We agree with the trial court that the provisions of the will are ambiguous. As such, the trial court correctly received parol evidence in order to resolve the apparently contradictory provisions. See Perkins v. O'Donald, 82 So. 401 (Fla.1919) (holding that parol evidence may be received if the will is in some way ambiguous, in order to ascertain the testator's intent); Harbie v. Falk, 907 So.2d 566 (Fla. 3d DCA 2005); Campbell v. Campbell, 489 So.2d 774, 776-777 (Fla. 3d DCA 1986); Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983); In re Estate of Rice, 406 So.2d 469 (Fla. 3d DCA 1981). The trial court based its findings on competent, substantial evidence, and we thus affirm the final judgment.

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Babcock v. Estate of Babcock, --- So.2d ----, 2008 WL 4863088 (Fla. 4th DCA Nov 12, 2008)

Any probate lawyer worth his or her salt will tell you that reading a person's will is often just the tip of the iceberg. You don't really know how to administer an estate unless you take the decedent's will and run it through Florida's probate code to see what comes out the other end. The results can be surprising.

The linked-to opinion is a good example of how radically altered a will's legal effect can be once it's administered under our probate code. All of the following probate-code rules played a part in this case:

• If you get divorced and forget to revise your will, don't worry, your ex is automatically cut out of your will under F.S.732.507(2).
• If you get married and forget to revise your will to provide for your new spouse, don't worry, he or she is automatically written into your will as a "pretermitted spouse" under F.S. 732.301.
• If you die and leave your spouse nothing but your household effects and a bunch of bills, don't worry, he or she gets to keep this stuff as "exempt property" under F.S. 732.402. However, if you specifically bequest all of this stuff to someone else, then your surviving spouse is out of luck.

Here's an excerpt from the linked-to opinion that manages to weave all of these concepts into three short paragraphs:

Bradford Babcock died leaving a will which provided in Article IV the following bequest:

I devise to my wife, TARA L. BABCOCK, all of my clothing, jewelry, household goods, personal effects, automobiles and all other tangible personal property not otherwise specifically devised herein or pursuant to the written statement or list described in Article Third of this my Last Will and Testament. If my said wife shall not survive me, I devise all of the aforesaid property to my son, BRAXTON D. BABCOCK, if he shall be living at the time of my death.

At the time of his death, he was divorced from Tara and married to Tawn Babcock, from whom he was separated. Because of the divorce, those provisions affecting Tara became void. § 732.507(2), Fla. Stat. Thus, the will would be construed as a bequest to Braxton of the property contained in Article IV. Tawn was not mentioned in the will and constituted a pretermitted spouse. § 732.301, Fla. Stat.

Tawn filed a motion to determine exempt property pursuant to section 732.402(6), Florida Statutes, which provides that the surviving spouse has the right to a share of the “exempt property,” of the estate, which includes certain “[h]ousehold furniture,” “furnishings,” “appliances,” and “automobiles.” § 732.402(1), (2), Fla. Stat. However, “[p]roperty specifically or demonstratively devised by the decedent's will to any devisee shall not be included in exempt property.” § 732.402(5), Fla. Stat.

So what's a specific bequest?

As a first step all anyone had to do in this case was read the probate code, but once they ran up against the specific-bequest exception to the exempt-property statute, they got sucked into Florida's common law. Here's how the 4th DCA summarized the law on this point and how it should be applied to the specific facts of this case.

“A specific legacy is a gift by will of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described.” In re Estate of Udell, 482 So.2d 458, 460 (Fla. 4th DCA 1986). See also Park Lake Presbyterian Church v. Henry's Estate, 106 So.2d 215, 217 (Fla. 2d DCA 1958) (“[A] specific legacy is a gift of a particular thing or of a specified part of the testator's estate so described as to be capable of distinguishment from all others of the same kind.”). On the other hand, “[a] general legacy or devise is one which does not direct the delivery of any particular property; is not limited to any particular asset; and may be satisfied out of the general assets belonging to the estate of testator and not otherwise disposed of in the will.” In re Estate of Udell, 482 So.2d at 460. See also Park Lake, 106 So.2d at 217.

Applying the above definitions to this case, the clothing, jewelry, and automobiles mentioned in the will are clearly specific bequests because they are particularly designated and can be satisfied only by receipt of the particular property. Stated differently, they are specific things or a specific part of the testator's estate. They are not general bequests because they cannot be satisfied out of the general assets of the testator's estate. The bequest in the instant case is similar to that in In re Estate of Gilbert, 585 So.2d 970, 972 (Fla. 2d DCA 1991), where the Second District found that a bequest of “all of her jewelry, clothing, and feminine personalty ... was a specific bequest of identifiable property.”

 

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Bryan v. Dethlefs, --- So.2d ----, 2007 WL 1425499 (Fla. 3d DCA May 16, 2007)

In this case the beneficiary of his predeceased grandfather's trust died before the trust assets were fully distributed to him.  The subsequent litigation revolved around this question: in order to vest under the trust, does the following trust clause require the beneficiary to be living at the time of the settlor's death, or upon full distribution of his inheritance under the trust?

Distribution to Grandson: Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my Grandson, ROBERT R. BIZZELL, if he is living at the time of distribution. (emphasis added).

Miami-Dade County Probate Judge Arthur L. Rothenberg ruled the vesting event was the settlor's date of death, and the 3d DCA affirmed.

Lesson learned: when in doubt, it's vested - NOT contingent

Rules of construction can be useful tools because they tip the scales in favor of a certain interpretation when the subject text is less than crystal clear.  That's what happened in this case.  The following excerpt from the linked-to opinion provides useful guidance with respect to the rules of construction applicable if there is any doubt that an inheritance vests immediately or is contingent upon some future event:

[T]he law favors the early vesting of estates. Lumbert v. Estate of Carter, 867 So.2d 1175, 1179 (Fla. 5th DCA 2004)(citing Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925)). As this Court stated in Estate of Rice v. Greenberg, 406 So.2d 469 (Fla. 3d DCA 1981), any doubt as to whether an interest is vested or contingent should be resolved in favor of vesting:


This Court is committed to the doctrine that remainders vest on the death of the testator or at the earliest date possible unless there is a clear intent expressed to postpone the time of vesting. It is also settled that in case of doubt as to whether a remainder is vested or contingent, the doubt should be resolved in favor of its vesting if possible, but these general rules all give way to the cardinal one that a will must be construed so as to give effect to the intent of the testator.

406 So.2d at 473 (quoting Krissoff v. First Nat. Bank of Tampa, 32 So.2d 315 (Fla.1947)). Accordingly, no estate should be held to be contingent “unless very decided terms are used” and “unless there is a clear intent to postpone the vesting.” Sorrels, 89 Fla. at 467, 105 So. at 110. Indeed, “[t]he presumption that a legacy was intended to be vested applies with far greater force, where a testator is making provision for a child or grandchild, than where the gift is to a stranger or to a collateral relative.” Sorrels, 89 Fla. at 467, 105 So. at 110.

Finally, if a trust vests at the settlor's death, then “the death of the beneficiary before it becomes payable does not cause the legacy or devise to lapse.” Sorrels, 89 Fla. at 465, 105 So. at 110. Similarly, where a settlor intends a trust to vest upon the testator's death, benefits accrue to the beneficiaries from the time of the death, not the subsequent time that the trust was funded. In re Bowen's Will, 240 So.2d 318, 320 (Fla. 3d DCA 1970).

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Morgan v. Cornell, --- So.2d ----, 2006 WL 2987107, 31 Fla. L. Weekly D2632 (Fla. 2d DCA Oct 20, 2006)

Estate planning and probate litigation are two sides of the same coin.  The planner needs to understand the underlying substantive property rights being conveyed and how to draft documents that accurately describe what those property rights are and to whom they are being conveyed.  In the event of a dispute, the litigator needs to understand the same: what are the underlying substantive property rights being disputed and does the operative document effectuate a legally enforceable conveyance.

That's why this case is equally instructive to the planner and the litigator.  The litigation revolved around whether the decedent had validly devised a life estate in two properties he owned as tenants-in-common with his girlfriend.  The properties at issue were a home in Naples, Florida and a second home in New Hampshire (i.e., the amount in controversy likely exceeded seven figures).  The decedent's children argued -- and won at the probate-court level - that the devise was invalid and thus girlfriend got nothing.  Girlfriend argued the opposite . . .  and won where it really counted, before the 2d DCA, which reversed the probate court's order.

Here's how the 2d DCA articulated the issue on appeal:

The specific devises at issue state:

If I own the home [in New Hampshire/Florida] at my death, I leave said home and real estate together with the contents therein to Julia H. Morgan for the term of her life, subject to the obligation to pay all real estate taxes, upkeep, insurance and ordinary costs of ownership, with a remainder interest in fee simple as Tenants in Common to her children ···, per stirpes.

**********

The personal representative of Mr. Cornell's estate, his daughter Elizabeth L. Cornell, filed a petition seeking construction of these conditional devises, alleging that the condition-“If I own the home”-is unclear in extent, nature, and meaning. On one hand, the word “own” could be read to mean “to the extent I own the home,” so that the specific devises would be effective for whatever interest the testator possessed at his death. On the other hand, the word “own” could be interpreted more strictly, so that the condition would be fulfilled only if the testator were the sole owner of each home at the time of his death. If the second interpretation were operative, the condition would fail and the testator's interest in the homes would become part of the residuary estate and pass to his three children.

The 2d DCA rejected the children's interpretation -- and the probate court's order -- by holding that the word "ownership" was a broad enough term to encompass a tenants-in-common interest.  This is the part of the 2d DCA's opinion that is most instructive to future planners/drafters and litigators because it articulates in clear, unambiguous language what a "tenants-in-common" interest is and how it can be devised:

The parties in this case agree that Mr. Cornell and Ms. Morgan owned the real properties as tenants in common. When two persons own property as tenants in common,

A and B each owns in his own name, and of his own right, one-half of Blackacre···· It means that each owns separately one-half of the total ownership···· Each is entitled to share with the other the possession of the whole parcel of land. Each may transfer his undivided one-half interest as he wishes so long as the transfer does not impair the possessory rights of the other tenant in common. Each may transfer his undivided one-half interest by will···· The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel.

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land & Future Interests 58-59 (1966). The estate of a tenant in common is both inheritable and devisable. Tyler v. Johnson, 61 Fla. 730, 55 So. 870 (1911).

As a tenant in common, Mr. Cornell owned a physically undivided part of each entire parcel in New Hampshire and in Naples. Without question, Mr. Cornell did “own” the property at the time of his death; the ownership condition was fulfilled; and each devise validly passed a life estate in his undivided half interest to Ms. Morgan-just as he intended.

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Karasek v. William J. Lamping Trust, 2005 WL 2086183 (Fla. 4th DCA August 31, 2005) (Trial Court Reversed)

Precise drafting is the single most effective barrier against costly probate litigation. What makes estate planning documents especially challenging for attorneys is that the careful drafter needs to consider the very real possibility that the Will or Trust he or she drafts today could become a disputed matter decades in the future (or even hundreds of years in the future under Florida's new rule against perpetuities statute, see F.S. § 689.225). That's what happened in this case. A Will that was executed in 1967 became the subject of litigation in 2003 . . . 36 years after the date it was signed!

The 1967 Will contained a "default" clause common to any well drafted Will. Essentially, the document directed that in the event the testator's children predeceased his surviving spouse, upon the death of his surviving spouse the trust corpus was to be distributed to the "heirs" of his deceased children. What was unclear was whether the 1967 definition of heirs was applicable or the 2003 definition of heirs was applicable. The Fourth District Court of Appeals ruled that under Florida law the presumption is that the testator intended the term "heirs at law" to be construed under the statutes in existence at the time the Will was executed, i.e., 1967.

The entire dispute could have been avoided if the default clause had stated what law was applicable, as the following example does:

If any property is subject to this article under another provision of this Trust Agreement, the Trustee shall distribute that property to my heirs at law determined under Florida law then in effect as if I had died intestate and unmarried on that date as a resident of Florida.

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Rosoff v. Harding, 2005 WL 1163101 (Fla. 4th DCA May 18, 2005) (Trial Court Affirmed)

Sometimes a belts-and-suspenders approach to estate planning is not just overkill, it actually ends up doing more harm than good. In this case "Brother" wanted to look out for his sister. So far, so good. So Bother's Will creates a testamentary trust for Sister's life-time benefit and gives her a testamentary power of appointment over the trust corpus. Again, so far so good. But just in case Sister might be victimized, Brother's Will required that any exercise of Sister's power of appointment within 18 months of her death had to be witnessed by a corporate officer of his Corporate Trustee. In theory, this last clause probably sounded like a good idea. In practice, this belts-and-suspenders approach resulted in unintended consequences that the Fourth DCA characterized as "extremely unfortunate" and "unintentional," but beyond the "court's power to correct."

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Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) (TRIAL COURT AFFIRMED)

Commenting that this case presented an issue of "first impression in Florida," the Fourth DCA affirmed a trial court's refusal to enforce burial instructions in the decedent's Will based on clear and convincing evidence presented by his wife of forty years and others that he had changed his mind since executing his Will. The Fourth DCA held that a testator's body is not considered "property." As such, the general rule of construction found in Probate Code Section 732.6005(2) requiring Wills in Florida to be deemed to pass all property that the testator owns at death does not apply to bodily dispositions. Instead, the 4th DCA formulated the following rule regarding the disposition of a Florida testator's body:

[A] testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.

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Lumbert v. Estate of Carter, 867 So.2d 1175 (Fla. 5th DCA Feb. 27, 2004) (TRIAL COURT REVERSED)

Molly Joy Carter ("Mom") executed a will on February 23, 1994 that left all of her $1.5 million estate in trust for her only child, Lisa Lumbert ("Daughter"), until Daughter reached certain ages, at which time the trust assets were to be distributed to her outright and free of trust.

Mom died and her will was admitted to probate on August 30, 2000. Fourteen months later Daughter died on October 15, 2001 at age 41. At the time of Daughter's death, most of Mom's $1.5 million estate was still being administered, so only about $100,000 had been transferred to Mom's testamentary trust for Daughter. Mom's brothers and sister argued that Article IV E. of Mom's trust for Daughter should control what happens with the rest of Mom's estate, which would result in most of Mom's estate going to them. Daughter's surviving husband argued that Articles IV D. of Mom's trust should control, which would, not surprisingly, result in most (i.e., two-thirds) of Mom's estate going to him.

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