When an interested person files a caveat to a will, F.S. § 731.110(3) requires that Formal Notice be given to the caveator, and that such person be given the opportunity to participate in proceedings before a will is admitted or a personal representative is appointed. The consequences of not giving timely notice to a caveator were previously addressed on this blog here, and related legislation discussed here.

What happens when Formal Notice is given to a caveator, and the caveator fails to timely file responses and affirmative defenses?

Florida Probate Rule 5.040(a)(1) requires interested persons to serve written defenses “within 20 days after service of the notice.” Is the caveator barred from participating in the proceedings if the answer and affirmative defenses are untimely? That’s the question at the heart of the following case.

Rocca v. Boyansky, — So.3d —-, 2012 WL 280752 (Fla. 3d DCA February 01, 2012):

In this case Rocca filed a caveat and was given the required Formal Notice, stating that a response was due by September 21, 2009, twenty days after the notice was served. Rocca did not file a response within the required time, but the probate court granted a motion for extension until December 15, 2009. However, Rocca did not file a response until December 22, the night before a hearing on the amended petition for administration. At the hearing, the probate court did not address the arguments raised in Rocca’s response, and ultimately admitted the will. It seems that the probate court thought that Rocca was barred from contesting the will because his answer and affirmative defenses were untimely.

The 3rd DCA disagreed, and reversed the trial court’s dismissal. According to the 3d DCA, despite the untimely response, the probate court should have heard Rocca’s arguments before admitting the will. Thus, F. S. § 731.110(3) was not satisfied because Rocca was not given the opportunity to participate in the proceedings. Here’s how the 3d DCA explained its ruling:

The appellees would excuse this error on the basis that Rocca was barred from defending against the allegations of the Amended Petition by the untimely filing of his answer and affirmative defenses to the Amended Petition. We find no merit to this argument. Rocca was obligated to serve written defenses to the petition served on him within twenty days after formal notice of the petition. Fla. Prob. R. 5.040(a)(1). His Answer, Affirmative Defenses, and Counter Petition in this case was due (after court sanctioned extensions) on December 15, 2009. He filed this response seven days late and thirty minutes before the December 22, 2009, hearing. If the trial court was annoyed with Rocca and his counsel, it had every right to be so. However, the law is clear that Rule 5.040(a)(1) is neither a statute of limitations nor a mandatory non-claim provision. See Long v. Willis, 36 Fla. L. Weekly D1811 (Fla. 2d DCA Aug. 17, 2011) [click here]; Nardi v. Nardi, 390 So. 2d 438, 440 n. 2 (Fla. 3d DCA 1980). Rather, this Court and other Florida courts which have considered the question all treat the [Formal Notice] rule as a procedural one. See Long, 36 Fla. L. Weekly at D1814; see also Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st DCA 1985). Since Rocca’s Answer, Affirmative Defenses, and Counter Petition was filed before the hearing on the petition, Rocca was not barred from participation in the hearing on the Amended Petition or asserting such defenses as he had to that petition. Tanner, 476 So. 2d at 794 (reversing order striking beneficiaries’ untimely filed answers to petition for administration, which were filed before the hearing on the petition and before entry of order admitting will to probate and granting letters of administration).