Owens v. Estate of Davis, ex rel. Holzauser, __ So.2d __, 2006 WL 1716786 (Fla. 2d DCA June 23, 2006) 

In this case the decedent’s surviving wife claimed her statutory “elective share” (30%) of the estate. So the question then became: after wife gets her 30%, who gets the remaining 70% of the estate? The decedent’s will did not address this scenario, so what the probate court should have done is simply order that the remaining 70% of the estate pass according to Florida’s intestate succession law (F.S. § 732.103). That is not what happened. Instead one of the heirs apparently convinced the probate court that to figure out the most "equal or equitable" way of distributing the rest of the estate he should consider extrinsic evidence regarding what the decedent would have wanted to happen. The probate court went along with that approach and was reversed by the Second DCA. Here’s how the Second DCA summed up its rationale for reversal:

"The terms of Mr. Davis’s will are clear and unambiguous; however, the will does not specify how the probate court should distribute Mr. Davis’s residuary estate if his wife claims her elective share. When Mr. Davis’s wife claimed her elective share, rather than let the residuary estate pass according to the law of intestate succession, the probate court considered extrinsic evidence to determine how to distribute those assets. The trial court’s consideration of extrinsic evidence to “rewrite” the will was error:

The court may not alter or reconstruct a will according to its notion of what the testator would or should have done···· It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable. In re Estate of Barker, 448 So.2d 28, 31-32 (Fla. 1st DCA 1984) (quoting 18 Fla. Jur.2d Decedent’s Property § 358, at 216)."

(Emphasis added.)