GLADYS N. GROOMS, PHILIP A. LEHMAN, SUSAN D. ZIRILLI, ET AL., APPELLANT,
v.
DELLA K. ROYCE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CLARA MAE ENDERS, APPELLEE

Fla. 5th DCA | 1994-06-17
No. 93-2564
PETERSON and DIAMANTES, JJ., concur.
638 So. 2d 1019 Florida District Court of Appeal, Fifth District (1994) Positive Treatment
Cited by 8 cases

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Synopsis

The Florida appellate court reversed the probate court's admission of a will and appointment of a personal representative without first adjudicating the contestants' challenge to the will's validity based on undue influence. The court held that when a caveat is filed, formal notice and a hearing on the will's validity must precede probate admission, regardless of the named representative's qualifications.


Holding

The court held that when a caveat is filed, the probate court must serve formal notice of the will submission on the caveator and must adjudicate any challenges to the will's validity before admitting the will to probate or appointing a personal representative, even if the named representative is statutorily qualified. The trial court cannot bypass this requirement simply because the named representative meets all lawful requirements for appointment.


Headnotes

[1] Flattery, physical and verbal demonstrations of affection, overreaching blandishments, and cajolery can rise to the level of undue influence.

[2] A court shall not admit a will to probate or appoint a personal representative after a caveat has been filed without service of formal notice on the caveator.

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Key Quotes

“After the filing of a caveat by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator's designated agent.”

States the probate rule requiring formal notice when a caveat is filed, establishing the mandatory procedural requirement the trial court violated.

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Facts & Procedural History

Clara Mae Enders became dependent and vulnerable due to severe illness and her husband's death. In a prior guardianship proceeding, the trial court fo…

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Opinion of the Court
HARRIS, Chief Judge.

HARRIS, Chief Judge.

Appellants appeal from an order admitting the will of Clara Mae Enders to probate and appointing Della K. Royce as personal representative.

Prior to Enders’ death, in a separate guardianship action, her sister, Gladys Grooms, an appellant herein, and Tommy Burnett, the principal beneficiary under the contested will, filed conflicting petitions for appointment as Enders’ guardian. In its order on the petitions, the trial court found:

THIS CAUSE, having come before the Court in hearing of March 18,1993, continued on April 6, 1993, and concluded on April 9, 1993, and the Court having heard the testimony and reviewed the depositions of witnesses and having heard and considered the arguments of counsel and having been fully advised in the premises, the Court finds as follows:
1. That CLARA MAE ENDERS is an elderly person who has been dependent and vulnerable, since at least November of 1990, as a result of severe personal illness, inability to care for her own needs and the death of her husband;

2. That CLARA MAE ENDERS’ dependence and vulnerability constituted a situation of duress which made her susceptible to influence and control by TOMMY D. BURNETT;

3. That flattery, physical and verbal demonstrations of affection, overreaching blandishments, and cajolery can, and in this case did, rise to the level of undue influence, depriving CLARA MAE ENDERS of the ability to make rational judgments; Voices v. Arthur Murray, Inc., 212 So. 2d 906 (2 DCA 1968);

4. That TOMMY D. BURNETT exercised his influence so as to manipulate and control CLARA MAE ENDERS, fostering the increased dependency of CLARA MAE ENDERS on TOMMY D. BURNETT for companionship, total body care, financial advice and, ultimately residential care;

5. That as a result of such dependency, CLARA MAE ENDERS paid TOMMY D. BURNETT for services which were not necessary at times of CLARA MAE END-ERS’ hospitalizations, during vacations and at times when CLARA MAE ENDERS was capable of managing the activities of daily living without substantial assistance; and gave TOMMY D. BURNETT and other members of his family substantial sums of money as to which no promissory notes or other documentation was given;

6. That, as a further result of such dependency, CLARA MAE ENDERS contributed $65,000.00 to the costs of construction of improvements to and renovation of real property titled in the names of TOMMY D. BURNETT and DIANE E. BURNETT, husband and wife ... as to which CLARA MAE ENDERS received no legal interest in such property;

7. That, as a further result of such dependency, CLARA MAE ENDERS became isolated from her family and that of her deceased husband.

The court then appointed Gladys Grooms to be the guardian of Enders’ person and appointed Attorney Charles Ian Nash to be the guardian of Enders’ property.

After Enders’ death, appellant Grooms and Philip Lehman (Enders’ nephew), filed a Caveat by Interested Persons requesting that the court not admit Enders’ will to probate or appoint a personal representative without formal notice to the caveators. Appellee Royce (the named personal representative in the contested will) filed a petition for administration and the appellants objected, challenging the validity of the will on the grounds of undue influence. Without hearing, the court notified appellants of his ruling on their challenge to the validity of the will by the following letter:

Enclosed for each of you is a conformed copy of the Order Admitting the Will of Clara Mae Enders to probate and appointing Della C. Royce as Personal Representative. Also enclosed is a conformed copy of the Letters of Administration issued October 2, 1993.

At the time of the entry of the enclosed Order and the issuance of the letters, I was fully aware of the Petition filed by Mr. Northcutt, formal notice of which was served on Mr. Thiebes and Mr. Yardley on September 21, 1993. I am also aware that the Petition, among other things, seeks to revoke the will and have Susan D. Zirilli appointed Personal Representative. Enclosed with each copy of this letter is a photocopy of the case of Pontrello vs. Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988). Della Royce is the person named in the decedent’s will as personal representative and she is statutorily qualified to serve. It appears to me, therefore, that even with Mr. Northcutt’s Petition already on file, I have no discretion but to enter the enclosed Order and issue the enclosed Letters. Since there appears to be no discretion, there appears to be nothing which could be accomplished by requiring a hearing prior to issuance of the enclosed Order and Letters of Administration. I felt this letter of explanation may be helpful in light of the fact that the adversary positions of the parties are already firmly on record.

This appeal follows.

The probate rules provide:

5.260 Caveat Proceedings:
(a) Piling. Any creditor or interested person other than a creditor may file a caveat with the court.

(f) Other Interested Persons; Before Commencement. After the filing of a caveat by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator’s designated agent. (Emphasis added).

733.2123 Adjudication before issuance of letters.

A petitioner may serve formal notice of his petition for administration on interested persons. A copy of the will proposed to be admitted to probate shall be attached to the notice. No person who is served with formal notice of the petition for administration prior to the issuance of letters or who has waived notice may challenge the validity of the mil, testacy of the decedent, qualifications of the personal representative, venue, or jurisdiction of the court, except in connection with the proceedings before issuance of the letters. (Emphasis added).

These provisions, read together, require that if a caveat is filed, formal notice of the submission of a will for probate must be given. Thereafter, the court must adjudicate any challenge to the will before admitting the will to probate.

The court improperly relied on Pontrello v. Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988). Pontrello involved a challenge to the testator’s choice of personal representative, a choice that met all lawful requirements for appointment, made in an admittedly valid will. Pontrello is good law but its application to this ease is not.

Appellants do not contend that Royce is not qualified to serve as personal representative; they challenge the very will that appoints her. If the will fails, then her appointment fails.

The trial court is required to rule on the challenge to the will before proceeding to probate or naming the personal representative designated by the contested will, regardless of her qualifications.

REVERSED and REMANDED.

PETERSON and DIAMANTES, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008)
    …that the fifing of a caveat precludes the admission of a will to probate until the caveator is provided statutory notice. See Street v. Crosthwait, 136 Fla. 327, 186 So. 516 (1939); Barry v. Walker, 103 Fla. 533, 137 So. 711 (1931); Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994); In re Estate of Hartman, 836 So. 2d 1038 (Fla. 2d DCA 2002); Nardi v. Nardi 390 So. 2d 438 (Fla. 3d DCA 1980). Since we find that Mr. Wheeler was an “interested person” within the meaning of section 731.201(21), we hold that the…
  • In re the Est. OF Laura L. Hartman v. Eberhardt, 836 So. 2d 1038 (Fla. 2d DCA 2002)
    …rs. The implication of the notice mandate for section 733.2123 entitled “Adjudication before issuance of letters” is that will contests and the rights of caveat-ors must be determined prior to letters of administration being issued. Grooms v. Royce, 638 So. 2d 1019, 1021 (Fla. 5th DCA 1994); see also Barry v. Walker, 103 Fla. 533, 137 So. 711 (1931) (noting that a caveat filed by a will contestant precludes the admission of the will to probate until the caveator has been given notice, thereby affording opportu…
    1 / 2
  • Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012)
    …Fla. 5th DCA 2008); In re Estate of Hartman, 836 So. 2d at 1039 (“[P]robate court was obliged to make a determination on th[e] challenge to the will prior to appointing a personal representative and admitting the will to probate.”); Grooms v. Royce, 638 So. 2d 1019, 1021 (Fla. 5th DCA 1994) (“The trial court is required to rule on the challenge to the will before proceeding to probate or naming the personal representative .... ”); In re Estate of Roberg, 396 So. 2d 235, 236 (Fla. 2d DCA 1981) (“In an original…

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