JOHN HAROLD YELLEN AND ROBERT HAROLD YELLEN, APPELLANTS,
v.
QUENTIN V. LONG, INDIVIDUALLY AND AS EXECUTOR/PERSONAL REPRESENTATIVE AND ATTORNEY FOR THE ESTATE OF MURRAY HAROLD YELLEN, DECEASED, AND BETTY ROLLIN (AKA BERTHE ROLLIN), MURRAY GLANZ (AKA MURRAY GLANTZ), MAXWELL YELLEN, JOSEPH YELLEN, EDITH GINSKY, BENEFICIARIES AND ADVERSE PARTIES IN THE ESTATE OF MURRAY HAROLD YELLEN, DECEASED, APPELLEES
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A petition for revocation of probate filed after the personal representative has been discharged is untimely and should be dismissed.
Appellants filed a petition for revocation of probate after the personal representative was discharged. They argued they should not be precluded from …
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HERSEY, Judge.
This is an appeal from an order of the probate court dismissing appellants’ petition for revocation of probate. Rule 5.025(a)(1) and (b)(2), Florida Rules of Probate and Guardianship Procedure provide that the Rules of Civil Procedure shall govern revocation proceedings. Rule 1.530, Florida Rules of Civil Procedure authorizes motions for rehearing; therefore appellants’ motion for rehearing before the probate court tolled the time for appeal and this appeal, contrary to appellees’ contention, is timely. Fla.R.App.P. 9.020(g)
Appellants’ petition for revocation of probate was filed subsequent to rendition of an order discharging the personal representative. We affirm our holding in In Re Estate of Jackson, 236 So. 2d 475 (Fla. 4th DCA 1970), that such a petition should be dismissed as untimely. It is urged that since appellants, who were not named in the will, received no notice, they should not be precluded from their day in court. The complainant in Jackson, supra, similarly received no notice. Further, the applicable statutes do not require that notice be given to heirs not named in a will. The absence of notice is therefore not relevant to a determination of timeliness in this context.
Appellants also appeal the denial of their motion for rehearing and other relief. Assuming that probate proceedings may be reopened under Section 733.903, Florida Statutes (1979), or pursuant to the inherent power and authority of the court where strong factual allegations of fraud, overreaching or mistake are made, as suggested by dicta in Padgett v. Estate of Padgett, 318 So. 2d 484 (Fla. 1st DCA 1975), the lower tribunal on at least two occasions found appellants’ allegations insufficient to entitle them to such relief. Strong policy reasons support the action of the court in this regard.
We therefore affirm.
AFFIRMED.
ANSTEAD and GLICKSTEIN, JJ., concur.
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VAN Dusen v. Se. First Nat'l Bank OF Miami, 478 So. 2d 82 (Fla. 3d DCA 1985)…the only exception to the bar raised by a personal representative’s discharge. The courts have indicated, albeit in dicta, that probate proceedings may be reopened where strong allegations of overreaching and mistake are made.13 See Yellen v. Long, 387 So. 2d 384 (Fla. 4th DCA 1980) (where lower tribunal found appellants’ allegations did not establish fraud, overreaching, or mistake, petition for revocation of probate filed subsequent to rendition of order discharging personal representative insufficient to…
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Karlis Guntis Fritsevich v. In re Est. OF Lydia Voss, 590 So. 2d 1057 (Fla. 3d DCA 1991)…n 733.109, Florida Statutes (1989), providing for revocation of probate “before final discharge,” was relied upon to deny the reopening of closed estates. See State ex rel. Ashbury v. Haddock, 149 So. 2d 552, 555 (Fla.1962); see also Yellen v. Long, 387 So. 2d 384 (Fla. 4th DCA 1980), review denied, 392 So. 2d 1381 (Fla.1981); Padgett v. Padgett’s Estate, 318 So. 2d 484 (Fla. 1st DCA 1975); In re Jackson’s Estate, 236 So. 2d 475 (Fla. 4th DCA 1970). Accordingly, the trial court’s order dismissing the appella…
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In re Est. OF Norah H. Clibbon v. Falconer, 735 So. 2d 487 (Fla. 4th DCA 1998)…mistake under Florida Rule of Civil Procedure 1.540(b). Section . 733.109(1), Florida Statutes (1995) provides that interested parties may [*488] petition to revoke probate “before final discharge of the personal representative.” In Yellen v. Long, 387 So. 2d 384 (Fla. 4th DCA 1980), petitioners, who were not named in the will which had been admitted to probate, sought to reopen an estate, alleging they had received no notice of the probate proceedings. In rejecting their claims, we explained that “the appli…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hutch Padgett v. In re the Est. of Nan Padgett, 318 So. 2d 484 (Fla. 1st DCA 1975)
- In re Est. of John C. Jackson, 236 So. 2d 475 (Fla. 4th DCA 1970)