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."

Estate of Heid v. Heid, 863 So.2d 1259 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED) Edward J. Heid died on December 18, 1999. Mr. Heid’s surviving wife, Blanche A. Heid, sought to enforce her elective share rights against a trust holding real and personal property that had benefitted her predeceased husband. Circuit Court Judge Charles M. Holcomb dismissed the complaint with prejudice for failure to state a cause of action. Noting that 2004->Ch0732->Section%202155#0732.2155″>Section 732.2155(1) explicitly limits Florida’s expanded elective share rights to decedents dying on or after October 1, 2001, the 5th DCA affirmed the trial court’s dismissal with prejudice.

Traeger v. Credit First Nat. Ass’n, 864 So.2d 1188 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT REVERSED) The decedent was not survived by a spouse or minor children. The decedent’s last will and testament devised her homestead property, a condominium unit in Ponce Inlet, Florida, to her adult step son and her adult natural daughter. The adult step son and her adult natural daughter, as co-personal representatives of the estate, petitioned the court to determine the homestead status of the condominium unit and asserted their belief that the property descended to both of them as protected homestead property. Circuit Court Judge C. McFerrin Smith III ruled that because the decedent’s adult step-son occupied a lower class under 2004->Ch0732->Section%20103#0732.103″>Section 732.103, Florida’s intestacy statute, his one-half share of the condominium property was not entitled homestead protection, while the surviving natural daughter’s share of the condominium was entitled to such protection. Continue Reading Adult Step-Son Entitled to Inherit Protected Homestead Property

A state district judge in Kerrville, Texas, signed a judgment ordering Baker Botts and Wells Fargo Bank Texas to pay $71 million in damages to former estate-planning client Kathleen C. Cailloux, a wealthy widow in Kerrville. The full article is available here. A previous article covering the same case is available here.

Great Southern Life Ins. Co. v. Porcaro, 869 So.2d 585 (Fla. 4th DCA Feb. 25, 2004)

Palm Beach County Circuit Court Judge Thomas M. Lynch, IV granted summary judgement against a life insurance company in favor of a woman whose husband had “mysteriously disappeared” more than two years prior to when she first filed a petition in probate court to have him declared dead. The 4th DCA reversed on the grounds that a death certificate obtained through probate proceedings pursuant to 2004->Ch0731->Section%20103#0731.103″>Section 731.103 “no longer has evidentiary value outside the context of probate proceedings.” As such, it was reversible error for the trial court judge to shift the burden of proving the decedent’s death away from the widow and onto the insurance company based on the evidentiary value of the death certificate.

Velde v. Velde, 867 So.2d 501 (Fla. 4th DCA February 25, 2004) (TRIAL COURT AFFIRMED) At issue in this case was whether simply filing a petition for extension of time to make an elective share election was a “proceeding,” and thus sufficient under old Section 732.212 to toll the then applicable four-month deadline date for making an election. Effective as of October 1, 2001, this statute was substantially revised and renumbered as 2004->Ch0732->Section%202135#0732.2135″>Section 732.2135, which now explicitly states that a “petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election.” However, because the decedent died on October 9, 2000, the court was required to apply old Section 732.212. Nonetheless, the 4th DCA noted that interpreting the tolling period under old Section 732.212 as only applying to litigation “would not give effect to the legislature’s intent and would yield an absurd result.” Consequently, the court held that the word “proceeding” should be “interpreted broadly enough” to encompass the extension petitions at issue in the case. Continue Reading When in Doubt, Err on the Side of Noticing All Interested Parties

In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED) Is a fetus a “person”? In the latest chapter of Florida’s fetal rights debate, the 5th DCA held that in the context of Florida’s guardianship law, the answer is no. Orange County Circuit Court Judge Lawrence R. Kirkwood denied Jennifer Wixtrom’s petition to be appointed guardian of the fetus of “J.D.S.,” a 22-year old woman suffering from severe mental retardation that was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families (“DCF”). Ms. Wixtrom’s petition was denied and she appealed. Continue Reading Court Says No to Guardianship for Fetus

A federal appeals court has declined to reconsider a ruling that former Playboy model Anna Nicole Smith is not entitled to $88.5 million from the estate of her late husband, oilman J. Howard Marshall II. Last December, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled a Texas probate court’s decision should stand: the oilman’s son was the sole heir — and doesn’t owe Smith anything. The panel said the federal judge in California who ruled in Smith’s favor in 2002 should never have even heard the case. Read more here.