Is it possible for three children completely cut out of their mother’s last will, as well as the three wills she previously executed, to somehow end up as sole beneficiaries of her estate? Yes

Wehrheim v. Golden Pond Assisted Living Facility, 2005 WL 1537448 (Fla. 5th DCA July 1, 2005) (Trial Court Reversed)

Most cases provide good examples of mistakes you want to avoid, for example, how mishandling homestead property can lead to unintended consequences (see here) or how to make sure you’ve served formal notice on a minor to cut off future litigation (see here). Sometimes a case comes along that simply reflects good, creative lawyering. This is one of them. In this case the Fifth DCA grappled with the following scenario, which seemed ready made for litigation. The decedent executed wills in 1998, 1999, 2000 and 2002. All four wills completely cut out her three children. The 2002 will ended up primarily benefitting the assisted living facility the decedent resided in at the time of her death. This last change was a complete departure from the three previous wills the decedent had executed. When the decedent died her children and the assisted living facility favored under her 2002 will were (surprise!) soon locked in litigation. Orange County Judge Lawrence R. Kirkwood granted a summary judgment motion in favor of the assisted living facility thereby denying petitions filed by the children (1) challenging the decedent’s 2002 will and (2) seeking removal of the personal representative. The Fifth DCA reversed the trial court and in the course of its decision shed light on some pretty creative lawyering.

Basically, the decedent’s three children were faced with the following challenge: how to argue they could potentially end up as beneficiaries of their mother’s estate. Here’s how they did it:

Step One: Argue that the decedent’s last will was valid to the extent it revoked all of her prior wills, but in all other respects was void.

The children argued, and the Fifth DCA agreed, that F.S. § 732.5165 permits a court to partially invalidate a will based on undue influence, while enforcing those portions of the will not affected by wrongdoing. In this case, the children argued the portion of their mother’s 2002 will revoking all prior wills was not the product of undue influence, and was thus valid. However, the portion of the 2002 will devising all of the decedent’s estate to the assisted living facility was the produce to undue influence, and is thus void. End result: a “testate” estate that favors the children exclusively.

Step Two: Argue that the legal presumption established by the doctrine of “dependent relative revocation” does not apply and thus the decedent’s three prior wills should be disregarded.

The doctrine of dependent relative revocation creates the following two rebuttable presumptions: (1) the testator did not intend to die intestate, and (2) that the testator intended that the revocation of the prior will is conditionally qualified on the validity of the subsequent will. The children argued that the fact that the decedent’s last will favoring her nursing home was a complete departure from her three previous wills rebuts the presumed preference for validating her prior wills. The Fifth DCA was unconvinced by this argument, but essentially delivered a victory to the children anyway. The Fifth DCA held that the rebuttable presumption arising under the doctrine becomes moot if the children are able to successfully prove up their case for partial validity of their mother’s last will under F.S. § 732.5165. In that case, the Fifth DCA held, the doctrine of dependent relative revocation does not apply, i.e., no need to overcome the presumption in favor of the decedent’s prior will, because the decedent’s last will would be given partial effect.

Step Three: Argue that raising the issue of standing for the first time in a summary judgement motion was improper, and thus this “affirmative defense” had been waived.

In its summary judgement motion, the assisted living facility argued for the first time that the children lacked standing to contest the 2002. The children countered by arguing that this was an affirmative defense that was not properly plead, and was therefore waived. The Fifth DCA held that standing as an “interested person” is an element that must be established in a petition challenging the validity of a will (see F.S. § 733.109(1)), and a petition seeking removal of a personal representative (see F.S. § 733.506). As such, it is not necessary to specifically plead standing as an affirmative defense in this context.