O’Brien v. McMahon, — So.3d —-, 2010 WL 3909644 (Fla. 1st DCA Oct 07, 2010)

In 1990 Calvin Todd purchased a life insurance policy from the Prudential Insurance Company and named his niece, Ms. O’Brien, and his daughter, Madison, as 50/50 beneficiaries.

In 1999 Mr. Todd signed a new beneficiary designation form, removing his niece and adding his newly adopted daughter, Heather, as a 1/2 beneficiary. When Mr. Todd died in 2007 only his two daughters were beneficiaries. Ms. O’Brien sued, claiming she was still a 1/2 beneficiary of her uncle’s life insurance policy because the change-of-beneficiary form he filed in 1999 failed to comply with Prudential’s contractual requirements.

Litigator’s Toolbox:

From a litigator’s point of view, there are two key issues addressed by the 1st DCA in this case that should be helpful for future litigants:

  1. Who has standing to litigate these claims?
  2. Is this a contract dispute or an inter vivos gift lawsuit?

[1] Who has standing to litigate these claims?

The first issue the court addresses is standing: did Ms. O’Brien have the right to file this lawsuit? She’s claiming her uncle didn’t comply with Prudential’s contractual requirements for changing beneficiaries, making his 1999 change-of-beneficiary form invalid. But isn’t that a claim only Prudential could assert? The 1st DCA seems to imply as much, but lets the issue go because it doesn’t change the outcome (and apparently none of the parties raised this objection):

Ms. O’Brien grounds her entire position on Prudential’s putative rights under the contract, rights which as to her are jus tertii. She asserts no rights that Prudential itself could not have asserted (if it had been so inclined) when she argues “that a beneficiary under a life insurance policy may be changed only by strict compliance with the conditions set forth in the policy.” . . . Yet Prudential does not make this argument or in any other way align itself with Ms. O’Brien’s efforts to claim the policy proceeds (or a portion thereof) for herself. .  .  .  Pretermitting the question whether Ms. O’Brien should be heard to urge the rights of a third party who has elected to stand mute, we turn to the pertinent policy language.

Under traditional jus tertii jurisprudence, “In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (emphasis added). The 1st DCA seems to be hinting that if someone had raised the standing objection, they probably would have ruled Ms. O’Brien lacked standing and killed the lawsuit early.

[2] Is this a contract dispute or an inter vivos gift lawsuit?

How you frame a case will determine in large part what law governs your lawsuit. Sometimes this matters, sometimes it doesn’t. For example, if Ms. O’Brien had framed her case as being about some sort of explicit or implied agreement by her uncle to make an inter vivos gift to her, she could have tapped into the body of law governing challenges to inter vivos gifts [click here, here]. She didn’t do that, as noted by the 1st DCA:

Ms. O’Brien makes no claim here or below that her uncle was under any legal obligation to make or keep her as a beneficiary under the policy. See generally Palm Lake Partners II, LLC v. C & C Powerline, Inc., 38 So.3d 844, 849 (Fla. 1st DCA 2010) (“A ‘promisor and a promisee can by agreement create a duty to a beneficiary which cannot be varied without his consent. But in the absence of such an agreement the parties retain control over the contractual relation they have created.’ ”) (quoting Restatement (Second) of Contracts 311 cmt. f. (1981)).

Instead Ms. O’Brien framed her case as a contract dispute: did her uncle follow Prudential’s contractual requirements for filing a change of beneficiary form? The important take-away from this decision is that this type of lawsuit will likely be governed by the rich body of law dealing with contract disputes, as specifically applied to insurance contracts.

In general, the right of an insured owner to change the beneficiaries of a life insurance policy “depends on the terms of contract between the insurer and insured as expressed in the insurance policy.” Martinez v. Saez, 650 So.2d 668, 669 (Fla. 3d DCA 1995) (quoting Shuster v. N.Y. Life Ins. Co., 351 So.2d 62, 64 (Fla. 3d DCA 1977)).

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This is the second time the 3d DCA has weighed in on this case (I reported on the first appeal here).

In July of 1996 Mr. Aronson deeded his condo (located on Key Biscayne, FL) to his revocable trust.  Upon Mr. Aronson’s death, his revocable trust created a life-time irrevocable marital trust for his spouse, remainder to his sons from a prior marriage. A few months later, in December of 1996, Mr. Aronson deeded this same condo directly to his spouse. This was a lawsuit waiting to happen.

Aronson v. Aronson, — So.3d —-, 2010 WL 4226204 (Fla. 3d DCA Oct 27, 2010)

Back in 2006, Mr. Aronson’s sons scored a victory when the 3d DCA ruled the deed their dad originally executed transferring his condo to his trust controlled, thus ensuring they would receive the condo upon surviving spouse’s death. Surviving spouse promptly fired back, filing suit to enforce all of her rights to the condo under the terms of the marital trust. This time around surviving spouse came out on top.

In the linked-to opinion above spouse sued for reimbursement of all of the condo-related expenses she had paid with her own funds and also for payment of all of her mandatory principal distribution rights under the marital trust. Because the trust owned only one asset (the condo), there’s only two ways spouse could be made whole:

  1. sell the condo and pay her from the sales proceeds, or
  2. transfer a % the condo’s ownership interest to her. The sons wanted to go with option 1 (which would result in wife getting booted out of her home), spouse wanted to go with option 2. The sons won at trial, but lost on appeal.

In an opinion that should be of interest to all estate planners, the 3d DCA ruled homestead property held in a marital trust does NOT lose its creditor protection, even if the creditor you’re protecting against is the spouse:

[T]he trial court reasoned that because any sale would be for the purpose of paying a debt owed to the widow, Article X, Section 4 of the Florida Constitution would not bar the sale. Section 4(b) of Article X specifically states that the exemption from forced sale inures to a decedent’s surviving spouse. There are only three recognized exceptions to this exemption, none of which apply here. See In re Adell, 321 B.R. 562, 571-72 (Bankr.M.D.Fla.2005). Accordingly, since the trial court erred in denying declaratory judgment on the homestead protection, we reverse on this point.

This case is noteworthy because it confirms once again that homestead property held in trust does NOT lose its creditor protection. As I previously explained here, the reason why opinions like this one are especially interesting to estate planners is because they chip away at the precedential value of In re Bosonetto, 271 B.R. 403 (Bankr.M.D.Fla.2001), a much-criticized Middle District Bankruptcy Court opinion ruling that homestead property held in trust lost its creditor protection.

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The histrionics we see on television are almost never allowed in a real courtroom. If something truly appalling is going to happen, it’s going to happen outside of the courtroom. Prime example: toxic e-mail feuds.

Sooner or later we all run into opposing counsel who try to provoke us into some kind of angry e-mail exchange. My policy: do NOT engage.

These sorts of soul crushing e-mail feuds do nothing to help the clients, move the focus of the case away from the substance of the matter (where it should be) to the lawyers (where it shouldn’t be), and are ultimately demeaning as well as psychologically damaging for all concerned.

Case in point: The e-mail feud between two Florida litigators that resulted in sanctions for both sides. The insults they exchanged were summarized by the ABA Journal:

  • From Mooney to Mitchell, written after an accusation that he couldn’t handle the pressures of litigation: Mooney said he was handling more than 200 cases, “many of which were more important/significant than these little Mag[nuson] Moss [warranty] claims that are handled by bottom feeding/scum sucking/loser lawyers like yourself.”
  • From Mitchell: Mooney displays symptoms of a disability marked by “closely spaced eyes, dull blank stare, bulbous head, lying.”
  • From Mooney: Mitchell should look in the mirror to see signs of a disability. “Then check your children (if they are even yours. … Better check the garbage man that comes by your trailer to make sure they don’t look like him).”
  • From Mitchell, after learning Mooney’s son suffers from a birth defect: “While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces.”

If you’re dealing with opposing counsel that just doesn’t get it, you may want to send him or her a copy of the Florida Bar Complaints filed against the lawyers in this case [click here, here], and note that toxic e-mails can actually get them sanctioned, as noted in the concluding paragraph of both Florida Bar Complaints:

By reason of the foregoing, the Respondent has violated the following Rules Regulating The Florida Bar: Rule 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice); and Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic).

On December 17, 2010, President Obama signed H.R. 4853, the Middle Class Tax Relief Act of 2010, into law. This legislation extends the Bush-era Tax Cuts and it brings back the federal estate tax for two years at tax rate of 35% and with an exemption of $5 million.  It makes a number of other dramatic changes to wealth transfer taxes. Hani Sarji, author of Estate of Confusion, has created two excellent charts summarize these changes. For those of you looking for a quick reference source, these charts are worth holding on to.

In this blog post Mr. Sarji provides the following chart comparing the Estate, Gift and GST Tax rules in 2010 with those applicable in 2011.

In this blog post Mr. Sarji provides the following chart comparing the gift tax rules for 2010 with the new gift tax rules applicable in 2011 and 2012.

Rossen v. Bilchik, — So.3d —-, 2010 WL 4628288 (Fla. 4th DCA Nov 17, 2010)

Under Florida law, the custodian of a will is required to deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. And if you don’t deposit the will, F.S. 732.901(2) says a court can order you to do it and make you pay the related attorneys fees and costs.

But two wrongs don’t make a right. If you want to get a court order compelling someone to deposit a will, you have to give that person notice of the hearing and an opportunity to be heard. In the absence of that minimal due process, you order isn’t valid. So says the 4th DCA:

These consolidated appeals arose out of a disagreement between two sisters after their father’s death. Appellee Janice Bilchik filed a petition against appellant Betsy Ann Rossen under section 732.901, Florida Statutes (2008); subsection (2) of that statute provides:

Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will as provided in subsection (1) [requiring deposit of a will “with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead”]. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.

Bilchik filed the petition with the clerk on January 11, 2008. Without a hearing and without any proof that the petition had been received by Rossen, on January 15, 2008, a circuit judge entered an order that was tantamount to a final judgment granting full relief under section 732.901 by requiring Rossen to produce the will and awarding $2,500 in attorney’s fees against her. The entry of this order without due process generated a plethora of motions, hearings, and contempt orders.

Rossen appeared in the lawsuit, sometimes with an attorney and sometimes without. She . . . timely objected to the entry of the January 15 order entered without notice and without a hearing. She was entitled to have the order set aside under Florida Rule of Civil Procedure 1.540(b).

Lorenzo v. Medina, — So.3d —-, 2010 WL 4483470 (Fla. 3d DCA Nov 10, 2010)

At common law, lapse occurs when the beneficiary or the “devisee” under a will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession. Florida enacted F.S. 732.603, an anti-lapse statute, to ameliorate the potentially harsh effects of this common law rule. Rather than lapsing, gifts covered by the statute go to a pre-deceased beneficiary’s descendants.

Florida’s anti-lapse statute does not fix all lapsed gifts, only those made to immediate family members. Gifts to neighbors, friends, and in-laws do not benefit from this statute.

At issue in the linked-to case was a gift to the testatrix’s sister-in-law, Juana R. Medina, who had predeceased the testatrix. The trial court ruled the sister-in-law’s gift was saved by F.S. 732.603, thus resulting in her 50% share of the estate going to her children, the testatrix’s niece and nephew. This may have seemed like an equitable outcome, but it failed as a matter of law. Gifts to in-laws are NOT saved by Florida’s anti-lapse statute.

As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. Tubbs v. Teeple, 388 So.2d 239, 239 (Fla. 2d DCA 1980) (“When a legatee under a will predeceases the benefactor, the gift lapses.”). The potentially harsh effects of this common law rule are ameliorated to an extent by the operation of statute. When the predeceased devisee is a descendant of the testator’s grandparents, section 732.603 will “save” the lapsed gift by creating a substitute gift in the devisee’s descendants. § 732.603(1). Because section 732.603 is in derogation of the common law, we must strictly construe its provisions. Drafts v. Drafts, 114 So.2d 473, 476 (Fla. 1st DCA 1959) (“The antilapse statute being directly in derogation of … the common law, the statute must be strictly construed.”).

*****

Pursuant to the common law rule outlined above, the bequest lapsed. And because Juana R. Medina is not a descendant of the Testator’s grandparents, the niece and nephew cannot invoke the operation of section 732.603(1) to “save” the bequest and provide them with a substitute gift. Thus, we conclude that the niece and nephew are not entitled to the Testator’s lapsed bequest. Accordingly, we reverse the order under review.

 

Johnson v. Amritt, — So.3d —-, 2010 WL 4861745 (Fla. 3d DCA Dec 01, 2010)

In contested trust and estate proceedings the fiduciary in charge of the estate (i.e., the trustee, personal representative or guardian) hires the lawyer, but the estate’s beneficiaries paythose fees (the fiduciary’s attorney’s fees are paid from the estate).

Because the party paying the fiduciary’s legal fees did not participate in negotiating the fee arrangement, there’s a built in tension every time a court is asked to rule on their reasonableness. Recognizing this tension, Florida’s Trust Code (F.S. 736.1007) and Probate Code (F.S. 733.6171) both contain specific guidelines to aid trial judges in setting attorney fees.

One of the primary social values promoted by these statutes is assuring the public that judges are making fee decisions in an objective and uniform manner. Here’s how the Florida Supreme Court articulated this crucially important point in Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985):

[G]reat concern has been focused on a perceived lack of objectivity and uniformity in court-determined reasonable attorney fees. Some time ago, this Court recognized the impact of attorneys’ fees on the credibility of the court system and the legal profession when we stated:

There is but little analogy between the elements that control the determination of a lawyer’s fee and those which determine the compensation of skilled craftsmen in other fields. Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that. It brings the court into disrepute and destroys its power to perform adequately the function of its creation.

Baruch v. Giblin, 122 Fla. 59, 63, 164 So. 831, 833 (1935).

Although the amount of an attorney fee award must be determined on the facts of each case, we believe that it is incumbent upon this Court to articulate specific guidelines to aid trial judges in the setting of attorney fees.

The only way a trial judge can assure parties involved in a contested trust or estate proceeding that the amount of attorney’s fees they’re paying was determined in an objective and uniform manner is to enter orders containing detailed findings as to [1] the hourly rate, [2] the number of hours reasonably expended, and [3] the appropriateness of reduction or enhancement factors. If a fee order doesn’t contain these findings it is per se erroneous and subject to reversal.

In other words, even if the trial judge’s fee order reaches the right conclusion, if it doesn’t explain in detail how the judge arrived at his conclusion (thereby giving all interested parties confidence in the ruling’s fairness), the order is per se wrong. That’s what happened in the linked-to case above, and why the trial judge’s fee order was reversed:

We review the trial court’s order “approving and authorizing the payment of attorney’s fees” to the former emergency temporary guardian’s counsel. After a thorough review of the record, we hold that the trial court did not make the requisite findings for an award of attorney’s fees. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151-52 (Fla.1985). “An order awarding attorneys’ fees is ‘fundamentally erroneous on its face’ when the trial court fails ‘to make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as required by [Rowe, 472 So.2d at 1151].” Parton v. Palomino Lakes Prop. Owners Ass’n, Inc., 928 So.2d 449, 453 (Fla. 2d DCA 2006) (quoting Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So.2d 1063, 1065 (Fla. 2d DCA 2004)). We reverse the order on appeal and remand with instructions for the trial court to make the requisite findings set forth in Rowe and its progeny and state the basis for awarding any such attorney’s fees.

 

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Probate courts can get reversed for refusing to appoint as personal representative (PR) the person with preference under F.S. 733.301. Don’t get me wrong, probate courts do have the inherent authority to override this statute, but only if there are specific findings of fact – developed in the context of a formal evidentiary hearing – that the statutorily preferred person lacks the “qualities and characteristics” necessary to serve as PR [click here].

Case Study

Stalley v. Williford, — So.3d —-, 2010 WL 4967982 (Fla. 2 Dist. Dec 08, 2010)

In the linked-to case the probate court attempted to exercise its inherent authority to override the PR-preference statute, but failed to support its order with evidence suggesting the statutorily preferred person was unfit to serve as PR. No evidence of unfitness = reversal. Here’s why:

Pamela Lynn Williford died in 2008, leaving two minor children as the sole heirs of her intestate estate. Douglas Stalley was tendered by the children as a suitable personal representative, but the circuit court appointed Williford’s father, Harrison Williford, instead. This appointment was contrary to the statute prescribing the order of preference for appointment of a personal representative in this case. Accordingly, we reverse.

The statute, section 733.301, Florida Statutes (2008), sets forth the following order of preference in appointment of a personal representative of an intestate estate:

1. The surviving spouse.

2. The person selected by a majority in interest of the heirs.

3. The heir nearest in degree.

§ 733.301(1)(b).

There was no surviving spouse in this case. Douglas Stalley was the person selected by both heirs, acting through the guardians of their property as authorized under section 733.301(2). Thus, Stalley should have been appointed unless otherwise disqualified. Cf. §§ 733.302, 303 (providing qualifications for personal representative); In re Estate of Snyder, 333 So.2d 519, 521 (Fla. 2d DCA 1976) (holding, under earlier version of statute, that court did not abuse its discretion in declining to appoint person with statutory preference where he lacked “the qualities and characteristics necessary to properly perform the duties”).

There was a complete absence of evidence to suggest that Stalley was unfit to serve. Thus, the court abused its discretion by appointing the decedent’s father rather than the representative chosen by the heirs.

Deathbed marriages can be the ultimate weapon for those looking to prey on the elderly. In Florida you can marry someone minutes before their death and automatically vest into the right to live in the decedent’s homestead residence rent-free for the rest of your life, a 50%-100% share of the decedent’s estate under Florida’s intestacy statute or pretermitted spouse statute, or at the very least a 30% share of the decedent’s estate under Florida’s elective share statute.

What may come as a shock to most lawyers is that under Florida common law heirs are stopped cold on a per se basis from challenging deathbed marriages — no matter how ugly the circumstances may be. This, by the way, is the traditional rule applicable in most U.S. jurisdictions (see How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America).

Efforts have been under way since 2008 aimed at closing this loophole [click here], culminating in 2010 with the creation of F.S. 732.805. This statute is a dramatic change from existing Florida law. For the first time in state history a decedent’s heirs will have legal standing to challenge a deathbed marriage on the grounds of fraud, duress or undue influence.

Florida probate lawyers would do well to familiarize themselves with F.S. 732.805; and for those of you looking for a little help on that front, you’ll want to check out this 2008 Bar-committee White Paper and the 2010 Florida Senate Bill Analysis covering the new statute. Here’s an excerpt from the Senate Bill Analysis:

The bill creates s. 732.805, F.S., which provides that a surviving spouse found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to certain rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse, unless the marriage is subsequently ratified. Specifically, the surviving spouse is not entitled to the following:

[1]  Any rights or benefits under the Florida Probate Code, including entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

[2]  Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name in the bond, life insurance policy, or other contractual arrangement.

[3]  Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name in the document.

[4]  Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

If the surviving spouse is found to have procured the marriage by fraud, duress, or undue influence, then any of the above rights or benefits that would have passed solely to the surviving spouse by virtue of the marriage shall pass as if the spouse has predeceased the decedent.

Any interested person may bring a challenge to a surviving spouse’s rights as a defense, objection, or cause of action. The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If the surviving spouse raises ratification as a defense, the spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both parties. A challenge made under this section must be commenced within four years after the decedent’s death, unless the claim is barred sooner by adjudication, estoppels, or a provision of the Florida Probate Code or Florida Probate Rules.

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Section 731.110 of Florida’s Probate Code allows any person who is apprehensive that an estate will be administered or that a will may be admitted to probate without that person’s knowledge to file a caveat with the court. “Caveat” is a Latin term that means “warning or admonition”. In the Florida probate context it refers to a mechanism that compels a local court to give you notice of any petition filed to administer a decedent’s estate (and as I wrote here, it’s reversible error if a probate judge ignores this obligation).

Especially if you’re anticipating a possible will-challenge, caveats are critically important defensive tools: they allow you to block an opposing party from getting him or herself appointed personal representative (“PR”) under an invalid will in advance of the litigation. The side that gets appoint PR has significant advantages in any probate case, and once a PR’s appointed, the court can’t just boot him out [see here, here, here].

Legislative fix:

Probate lawyers often try to file pre-death caveats, but some courts refuse to accept the filings. Neither the Florida Probate Rules nor the Florida Probate Code specifically prohibits the filing of a caveat if the person is not yet deceased; however, both the Code and the rules reference the content of a caveat in relation to a “decedent” and his or her “estate.”

Effective this year, F.S. 731.110 was amended to fix this problem and also generally improve the way caveats are administered. Here’s how the legislative fix is summarized in this Legislative White Paper:

EFFECT OF PROPOSED CHANGE GENERALLY:

The proposed change would permit the filing of a pre-death caveat by an interested person. So as to limit the burden placed upon the Clerk of Court to monitor pre-death caveats, the proposed change would provide that such caveats shall expire two (2) years after filing. The amendment would also exclude the filing of pre-death caveats by creditors of the decedent as the committee did not feel the appointment of a personal representative or the admittance of a potentially invalid will substantially affected the rights of creditors in an estate. The right of a creditor to file a post death caveat is not affected by this amendment. Finally, the amendment would also eliminate the inconsistencies between F.S. §731.110 and Fla. Prob. R. 5.260, bringing the statute in line with the procedural requirements of the rule.

ANALYSIS:

One of the primary purposes of F. S. §731.110 is to permit an interested personto require notice be served upon them and that they be permitted an opportunity to object to a petition for administration before a personal representative is appointed or the decedent’s purported last will and testament is admitted to probate. If the interested person is denied information regarding the death of the decedent, the purpose of the statute is defeated if the interested person is not permitted to file a caveat until after the death of the decedent. The clarification that pre-death caveats are permitted to be filed by interested persons assures that wrongdoers may not isolate individuals from their family and then obtain the appointment as personal representative or have a potentially invalid will admitted to probate without the interested person having any ability to require prior notice. The amendment also resolves the present inconsistency between the circuits in the interpretation of the present statute by the clerks of court regarding the acceptance of pre-death caveats. Finally, the amendment will limit the impact on the clerks of court by providing that the caveat will expire two years after filing. It would be the responsibility of the caveator to docket the pre-death caveat for re-filing or renewal at the termination of the two year period. The amendment also eliminates the inconsistency in procedural aspects between the statute and relevant rule and brings the statute in line with the rule.