There are all sorts of reasons why you may not want to commence a probate proceeding, but still have concerns about someone else getting the jump on you by secretly probating an invalid Will. In those cases you’ll want to file a “caveat,” an early-warning system used in probate proceedings that’s authorized by F.S. 731.110 and Probate Rule 5.260.
You can file a caveat before or after the death of the person whose estate is to be administered (with the exception of creditors, who can only file after death). By the way, if your local Clerk of Courts goofs and fails to provide the prior notice you’re entitled to as a caveator, you get a “do over”.
But there’s a second, equally important use for caveats. If you’re going to challenge a Will you already know about, you need to file a caveat in those cases too. In other words, simply filing an answer and affirmative defenses isn’t enough, you need to do both (file your answer and also file a separate caveat). Why? Because caveats are the best tool we have for making sure your side gets its day in court before someone else’s contested Will gets admitted to probate, a problem I’ve written about before. Here’s how the 2d DCA summarized the controlling law on this point in the Crescenzo case below:
[W]hen an interested person other than a creditor files a caveat and challenges the decedent’s will, “the probate court [is] obliged to make a determination on [the] challenge to the will prior to appointing a personal representative and admitting the will to probate.” In re Estate of Hartman, 836 So.2d 1038, 1039 (Fla. 2d DCA 2002); see also Rocca v. Boyansky, 80 So.3d 377, 381 (Fla. 3d DCA 2012). The filing of a caveat has “the effect of precluding the admission of the will to probate” until the party filing it has the opportunity to litigate his challenge. Barry v. Walker, 103 Fla. 533, 137 So. 711, 714 (1931); see also Rocca, 80 So.3d at 381 (holding that “will contests and the rights of caveators must be determined” prior to the letters of administration being issued).
But what if you don’t file a caveat and just file an answer, are you out of luck? Maybe not ….
Crescenzo v. Simpson, — So.3d —-, 2018 WL 1219709 (Fla. 2d DCA March 09, 2018):
In this case the contestant didn’t file a caveat, but did file an “Answer and Affirmative Defenses.” In most civil litigation that’s all you need to do. Not so in probate. So what happened? The probate judge ignored the answer and entered an order admitting the contested will to probate sans trial.
Conceding that caveats are mandatory if you want to guarantee a trial before a contested Will’s admitted, on appeal the contestant argued his answer was the “functional equivalent” of a caveat. Did this work? Yes … but just barely, so saith the 2d DCA:
As in Guth’s Estate, here we think any variance in form between Mr. Crescenzo’s answer and a true caveat is immaterial. There is no question that his answer identified his interest in the estate; there is no question that his answer put the court and the parties on notice of a will contest; there is no question that his answer precisely identified the decedent and will to which his challenge pertained; and there is no question that he was looking for a decision on his will contest before the will was admitted to probate. This is a case in which the substance of what Mr. Crescenzo was doing is obvious and any defect in form is inconsequential. See, e.g., Fla. Prob. R. 5.020(a) (“No defect of form impairs substantial rights ….”); In re Estate of Koshuba, 993 So.2d 983, 986 (Fla. 2d DCA 2007) (“We agree … that Mr. Zilewicz’s written statements, made within his Petition for Administration and the Amended Petition for a Guardian ad Litem, were substantially sufficient to place interested persons on notice of his claim. The documents filed in the probate proceeding … are defective as to form, but they sufficiently state the character and extent of his claim.”); Harbour House Props., Inc. v. Estate of Stone, 443 So.2d 136, 137 (Fla. 3d DCA 1983) (“The creditor’s response to the motion to strike its claim became the functional equivalent of a motion to excuse the untimely filing of a claim against the estate.”).
Because Mr. Crescenzo’s “Answer and Affirmative Defenses” was the functional equivalent of a caveat on the facts of this case, we conclude that the probate court erred in entering its order without first addressing Mr. Crescenzo’s will contest. We reverse and remand with instructions for the probate court to vacate the order admitting Ms. Quinones’ will to probate and appointing Ms. Simpson as personal representative and to conduct further proceedings consistent with this opinion.
So what’s the takeaway?
We can all agree no one should have to prosecute an appeal just to preserve your side’s right to a trial before a contested Will’s admitted to probate. In this case the contestant salvaged his trial by convincing the 2d DCA his answer was the “functional equivalent” of a caveat. And you may want to remember that argument if you ever find yourself in the same position (it can happen to the best of us).
But the real takeaway from this case is to not put yourself in this situation to begin with. If you want to guarantee a Will won’t get admitted until after your challenge is tried, simply filing an answer and affirmative defenses isn’t enough, you also need to file a separate caveat.