HELEN ANNE CAMMARATA, APPELLANT,
v.
SALLY MAE BECHHOLD AND LOUIS E. BOEDER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES OF THE ESTATE OF ROSE A. HOLT, APPELLEES

Fla. 2d DCA | 1990-03-07
No. 89-01925
CAMPBELL, C.J., and PARKER, J., concur.
557 So. 2d 922 Florida District Court of Appeal, Second District (1990) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Helen Anne Cammarata challenged her trial court loss when the court struck her petition to revoke the probate of her deceased mother's will as a sham pleading. The appellate court reversed, holding that Cammarata's signature on the initial petition for administration did not constitute a waiver of her right to challenge the will, particularly where she had not received statutory notice of time limitations for objecting.


Holding

The court held that Cammarata's petition for revocation is not a sham pleading because her signature on the petition for administration does not constitute a waiver, as she was not identified as a petitioner and signed only as an accommodation. Additionally, because Cammarata, as an interested person, did not receive statutory notice of time limitations for objecting to the will, her petition was timely and entitled to proceed.


Headnotes

[1] A petition for revocation of probate of will is not a sham pleading when the petitioner's signature on the initial petition for administration was made as an accommodatio…

[2] An interested person is entitled to statutory notice if the time for objecting to probate proceedings is to be shortened.

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Key Quotes

“The petition for revocation of probate of will is certainly not a sham pleading. The argument that Cammarata was one of the 'petitioners' and a proponent of the will for probate is groundless. Cammarata never signed the petition as a 'petitioner.' She only joined in signing as an accommodation, or with the understanding that her signature was necessary to get the ball rolling.”

Establishes that Cammarata's signature did not make her a petitioner or proponent of the will, defeating the sham pleading argument

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Facts & Procedural History

Rose A. Holt died and left a will dated April 12, 1985, naming two of her three children as personal representatives. Cammarata, the third child, sign…

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

Helen Anne Cammarata challenges the trial court’s order granting appellees’ motion to strike for sham Cammarata’s petition for revocation of probate of will, and the trial court’s denial of Cammarata’s motion for rehearing on the same order. We reverse.

On September 16, 1988, a petition for administration was filed to open the estate of decedent Rose A. Holt. Also filed at that time was the decedent’s purported last will and testament dated April 12, 1985. The will named as co-personal representatives two of decedent’s three children, appellees, Bechhold and Roeder. Cammarata is the decedent’s third child.

The petition was signed by appellees as the named personal representatives. Cam-marata also signed the petition at the request of Bechhold, and upon Bechhold’s assurances that the document’s purpose was to verify the names of their mother’s children and that it was “nothing important.” Shortly thereafter, Cammarata learned of prior wills executed by Mrs. Holt and on January 9, 1989 filed her petition for revocation of probate of will. Ap-pellees responded with a motion to strike for sham pursuant to Florida Rule of Civil Procedure 1.150. The motion alleged that Cammarata’s joinder in the petition for administration constituted a waiver of any right she had to challenge the decedent’s will of April 1985.

The petition for revocation of probate of will is certainly not a sham pleading. The argument that Cammarata was one of the “petitioners” and a proponent of the will for probate is groundless. Cam-marata never signed the petition as a “petitioner.” She only joined in signing as an accommodation, or with the understanding that her signature was necessary to get the ball rolling. There is absolutely no language in the petition referring to Cammar- ata as a petitioner. The petition only refers to appellees as petitioners.

Cammarata’s signature here is meaningless. We are of the opinion that since Cammarata is not a petitioner and she is unquestionably an interested person, she is entitled to notice under section 733.212 or 733.2123, Florida Statutes (1987), if the time for her to object to the proceedings is to be shortened. Since Cammarata did not receive notice of any shortened time period, her petition was timely filed under section 733.109 Florida Statutes (1987), prior to discharge of the personal representative. Therefore, Cammarata’s petition for revocation is not so clearly and unmistakably false as to constitute a sham pleading. Guaranty Life Insurance Co. of Florida v. Hall Bros. Press, Inc., 138 Fla. 176, 189 So. 243 (1939); Wood v. Price, 546 So. 2d 88 (Fla. 2d DCA), review denied, 553 So. 2d 1166 (Fla.1989).

Although Cammarata had actual notice that the April 1985 will was being filed for probate, actual notice is not sufficient. Kereszti v. Bishop, 462 So. 2d 508 (Fla. 3d DCA), review denied, 475 So. 2d 693 (Fla.1985); In re Estate of Ballett, 426 So. 2d 1196 (Fla. 4th DCA 1983); In re Estate of Dalton, 206 So. 2d 264 (Fla. 3d DCA), cert. denied, 211 So. 2d 213 (Fla.1968). Where statutory notice is required, actual notice is insufficient because the interested person is not put on notice of the time limitations for him to act. Ballett; Dalton. Because there was not strict compliance with the statutory notice requirements to interested persons here, Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980), Cammarata’s petition for revocation should not have been stricken. Her affidavit sets forth sufficient facts to grant the petition, and if they prove to be true, she should be accorded relief.

Reversed and remanded for further proceedings consistent herewith.

CAMPBELL, C.J., and PARKER, J., concur.


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Citator

Cited By

  • Menna v. SUN Country Homeowners Ass'n, Inc., 604 So. 2d 897 (Fla. 2d DCA 1992)
    …y, even if we found that the board had actual notice, where statutory notice is required, actual notice is not sufficient because it does not put the party on notice of the time limitations within which the party must act. See Cammarata v. Bechhold, 557 So. 2d 922 (Fla. 2d DCA1990); Kereszti v. Bishop, 462 So. 2d 508 (Fla. 3d DCA1985). As previously discussed herein, strict compliance is therefore necessary because of the time limitations contained in section 723.037. See Cammarata; Kereszti; Ballett; Nar-di.…

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