Perry v. Perry, — So.2d —-, 2008 WL 588901 (Fla. 4th DCA Mar 05, 2008)
4th DCA Judge Gary M. Farmer penned a thoughtful concurring opinion in this case dissecting the following question:
When a decedent’s will violates the terms of his divorce settlement agreement, as incorporated into a final judgment of divorce, what recourse do the rightful beneficiaries of the estate have?
Judge Farmer’s analysis of this question provides an excellent road map for probate counsel to follow if ever presented with a similar set of facts.
1st Theory: Breach of Contract Claim:
When a will violates the terms of a valid contract, the primary remedy is an independent action for breach of contract – not a frontal assault on the will itself. In other words, a will can be perfectly valid and also be in breach of a contract. The remedy then is a suit for damages resulting from the contract breach, not an order declaring the will invalid and not subject to probate. Here’s how Judge Farmer summarized current Florida law on this point:
“Florida courts have held that … the proper remedy for an alleged breach of a contractual provision in a will is an independent civil action for breach of contract. See Johnson v. Girtman, 542 So.2d 1033, 1035 (Fla. 3d DCA 1989); In re Estate of Algar, 383 So.2d 676, 677-78 (Fla. 5th DCA 1980); Sharps v. Sharps, 219 So.2d 735, 737 (Fla. 3d DCA 1969).”
Essentially these cases stand for the proposition that a will leaving property to someone to carry out a contractual duty is revocable even though the revocation breaches the contract, and so the remedy is an independent action for breach of contract.
2d Theory: Challenge the Will on the Grounds of Illegality:
What if the will-contract at issue is incorporated into a final judgment, as is common in divorce proceedings? This is where Judge Farmer’s analysis is most interesting. According to Judge Farmer a will that violates a final judgment is analogous to a will containing a illegal clause, and thus the offending clause may be ignored. This is a will-construction argument that is very different from the breach-of-contract theory I’ve always thought was primarily at issue in these cases. Here’s how Judge Farmer explained this point:
[A] bequest in violation of the rule against perpetuities is in opposition to the law of descent and distribution.FN3 Probate courts have a long tradition of refusing to carry out will provisions involving some attendant illegality in the distribution of decedent’s property. Another example-much beloved of the jurisprudes FN4 is Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), which held that the laws governing probate of wills and the distributions of estates, even though plainly requiring otherwise, will not be enforced to secure the benefit of a will to a legatee who has killed the testator in order to prevent a revocation of the will.
FN3. The common law rule against perpetuities has been replaced in Florida by statute. See § 689.225(7), Fla. Stat. (2007).
FN4. These legal philosophers cite Riggs as one of the chief examples of the incoherence of law-that is to say that opposing outcomes in legal disputes may both be justified by the legal corpus and that, contrary to the positivists, law is not a prediction of what a judge will do in a given case.
In this case, a substantial issue might be raised as to whether the probate court could properly enforce a will provision made in direct violation of a permanent injunction in a final judgment commanding the decedent to dispose of another person’s property in a certain way. If a court of competent jurisdiction has already determined by permanent injunction that decedent may name only his children by an earlier marriage under the power of appointment, by what theory may the Probate Judge enforce a willful violation of that injunction? After all, a violation of a permanent injunction is as much a violation of the law as a bequest extending beyond the period of perpetuities.