Jordan v. Fehr, 2005 WL 831382 (Fla. 1 DCA April 12, 2005)

Under F.S. § 733.201(1), a Will that that is “self-proved” in accordance with the statutory form provided in F.S. § 732.503, is admissible to probate without the testimony of the attesting witnesses. If the Will is not self-proved, under F.S. § 733.107 the proponent of the Will has the burden of establishing “prima facie” its formal execution and attestation. OK, now that I’ve spun your head with all these rules, what do they mean in real life you may ask?

A simple statutory form can make all the difference in the world if it shifts the burden of proof in a Will contest. In this case, one of the attesting witnesses described his role as follows:

I’m like a monkey, I wrote my name and address and I was gone.

Based on this kind of testimony, is it any wonder that the First DCA reversed the trial court’s refusal to grant summary judgement in favor of the party challenging the Will? Would the outcome have been different if the attesting witnesses had simply signed a self-proving affidavit and thus shifted the burden of proof to the challenging party? Maybe not, but then again, maybe it would have been just enough to tip the case the other way. Yes, a simple statutory form can be a big deal.

Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005)

Noting that this case presented an issue of “first impression in Florida,” the 4th DCA affirmed a trial court’s refusal to enforce burial instructions in the decedent’s Will based on clear and convincing evidence presented by his wife of forty years and others that he had changed his mind since executing his Will. The Fourth DCA held that a testator’s body is not considered “property.” As such, the general rule of construction found in Probate Code Section 732.6005(2) requiring Wills in Florida to be deemed to pass all property that the testator owns at death does not apply to bodily dispositions. Instead, the 4th DCA formulated the following rule regarding the disposition of a Florida testator’s body:

[A] testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.

Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED) St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate’s former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth DCA reversed the trial court’s order holding that Probate Rule 5.440(d) contempt proceedings require that a trial court expressly find that the removed personal representative had the present ability to comply its order. Continue Reading You Can’t Throw a Person in Jail for Failing to Comply with an Impossible Order

Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (TRIAL COURT AFFIRMED) The key issue in this case was whether an interested person’s attorney had to actually file a notice of appearance in the probate proceedings before he or she would be deemed to be “the attorney representing [the] interested person” for purposes of Probate Rule 5.040(a)(3)(A)(i) (Formal Notice) and Probate Code Section 2004->Ch0731->Section%20301#0731.301″>731.301 (Notice). Palm Beach Circuit Court Judge Mary E. Lupo ruled that filing a notice of appearance in the probate proceedings was not required. Continue Reading Formal Notice Can Be Served On An Attorney Who Has Never Appeared of Record.

Florida’s Constitutional Homestead Protection

Article X, Section 4, Florida Constitution

Florida’s “Probate Code” is contained in Chapters 731 — 735 of the Florida Statues.

Ch. 731 General Provisions
Ch. 732 Intestate Succession of Wills
Ch. 733 Administration of Estates
Ch. 734 Foreign Personal Representatives; Ancillary Administration
Ch. 735 Small Estates

Other relevant statutes include the following:

Ch. 198 Estate Taxes
Ch. 738 The Florida Uniform Principal and Income Act
Ch. 744 Guardianship
Ch. 747 Conservatorship
Ch. 765 Health Care Advance Directives (e.g., Living Wills)

Probate and Guardianship matters in Florida are administered pursuant to the following rules of procedure:

Probate Rules (2005 Edition)

October 1, 2004 Amendments to Probate Rules

2005 Biennial Report of the Florida Probate Rules Committee

Cover Letter
Report
Appendix A
Appendix B
Appendix C

Magnolia Manor, Inc. v Siegel, 866 So.2d 142 (Fla. 5th DCA Feb. 13, 2004) (TRIAL COURT REVERSED) In a case that has been pending for years, and was already the subject of a previously published appellate opinion in which the trial court was reversed in part and directed to allow Magnolia Manor, Inc., a nursing home where the decedent’s parents resided before their deaths and the sole beneficiary of the decedent’s 1978 will, to offer the 1978 will for probate (see First Union Nat’l Bank of Fla., N.A. v. Estate of Byron B. Mizell, 807 So.2d 78 (Fla. 5th DCA Feb. 2001) ), Orange County Circuit Court Judge W. Rogers Turner apparently was losing his patience when he dismissed with prejudice the petition filed on behalf of Magnolia Manor for apparently minor drafting errors committed by its counsel. The trial court dismissed the petition because the attorney who had prepared the papers had named himself as the “petitioner,” which was unfortunate for all concerned because the filing attorney was not himself an “interested party” under 2004->Ch0731->Section%20201#0731.201″>Section 731.201(21), thereby prompting the court to dismiss his petition with prejudice. The 5th DCA reversed the trial court noting that although the “papers filed by [petitioner’s counsel] were not models of clarity,” a “fair reading of the papers [counsel] filed demonstrates that [he] was proceeding not for his own personal interest, but as a representative of Magnolia Manor.”

Lumbert v. Estate of Carter, 867 So.2d 1175 (Fla. 5th DCA Feb. 27, 2004) (TRIAL COURT REVERSED)

Molly Joy Carter (“Mom”) executed a will on February 23, 1994 that left all of her $1.5 million estate in trust for her only child, Lisa Lumbert (“Daughter”), until Daughter reached certain ages, at which time the trust assets were to be distributed to her outright and free of trust. Mom died and her will was admitted to probate on August 30, 2000. Fourteen months later Daughter died on October 15, 2001 at age 41. At the time of Daughter’s death, most of Mom’s $1.5 million estate was still being administered, so only about $100,000 had been transferred to Mom’s testamentary trust for Daughter. Mom’s brothers and sister argued that Article IV E. of Mom’s trust for Daughter should control what happens with the rest of Mom’s estate, which would result in most of Mom’s estate going to them. Daughter’s surviving husband argued that Articles IV D. of Mom’s trust should control, which would, not surprisingly, result in most (i.e., two-thirds) of Mom’s estate going to him. Continue Reading Will Construction Statute Applied to Testamentary Trust

Dahly v. Dahly, 866 So.2d 745 (Fla. 5th DCA Feb. 13, 2004) (TRIAL COURT REVERSED) The decedent had attempted to revoke portions of his will by “lining through the name of the designated personal representative, placing the word ‘delete’ over certain paragraphs in the will, and placing his signature with the words, ‘Please draw up a new will making all changes noted here’ on a note in the adjoining margin.” Based on the decedent’s apparent intent to revoke his will, Orange County Circuit Court Judge Lawrence R. Kirkwood ruled that the decedent’s will and codicil were invalid and non-enforceable. The 5th DCA reversed on the grounds that the decedent’s attempted revocation did not comply with the will-execution formalities contained in 2004->Ch0732->Section%20502#0732.502″>Section 732.502, or comply with the “revocation by writing” requirements contained in 2004->Ch0732->Section%20505#0732.505″>Section 732.505, or comply with the “revocation by act” requirements contained in 2004->Ch0732->Section%20506#0732.506″>Section 732.506.

Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA Feb. 11, 2004)

Fifteen months after the court signed letters of administration appointing Henry Pass, a non-resident attorney, as co-personal representative of the decedent’s estate, the decedent’s daughter, Adriaan Angelus, filed a petition seeking to remove him as personal representative. Pass had initially filed a petition for administration that admitted he was a non-resident of Florida, but also claimed that he was the decedent’s nephew. At the hearing on the petition to remove him, Pass admitted that he was the blood nephew of the decedent’s former husband, not of the decedent. Consequently, Pass did not fall within the exception for blood relatives carved out in Section 733.304 to the general residency requirement imposed on Florida personal representatives. Notwithstanding this admission, the probate court dismissed the removal petition ruling that it was time barred by the three-month statute of limitations period established by Section 733.212.

The 3d DCA reversed the probate court’s ruling on two grounds. First, the court noted that Florida Probate Rule 5.310 places the burden on the personal representative, as a fiduciary, to provide all interested parties with notice in the event the personal representative is not legally qualified to serve. In this case, the personal representative did not provide the requisite notice. Consequently, the 3d DCA held that applying the three-month statute of limitations period contained in Section 733.212 to bar the removal petition would render Rule 5.310 "meaningless" and "improperly shift the burden of discovery of an applicant’s misrepresentations to the court and interested parties." Additionally, the court noted that Section 733.212 fell under Part II of Chapter 733 ("Commencing Administration"), and that Section 733.304 fell under Part III of Chapter 733 ("Preference in Appointment and Qualifications of Personal Representatives"). Finding that there was no "time limit" specified with respect to the qualification provisions found in Sections 733.304 and 733.3101 of Part III of Chapter 733, the court held that there was "no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute . . . particularly where the applicant was never otherwise legally qualified to serve."