IN RE ESTATE OF OLLIE L. SCOTT, A/K/A OLLIE C. SCOTT, DECEASED. KATHY S. GRIFFIS, FOR EMERY CHARLES GRIFFIS, DECEASED, APPELLANT,
v.
C.W. SCOTT, APPELLEE
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In this estate administration case, the court reversed the trial court's denial of a petition to add heirs to Ollie Scott's estate. The court held that even though the testator explicitly excluded Emery Griffis from her will, the Florida antilapse statute entitles Griffis, as a lineal descendant of the primary devisee (Mary Venture), to take the devise per stirpes.
The court held that Griffis is entitled to take the devise per stirpes under Florida's antilapse statute if he can establish that he is a lineal descendant of the predeceased devisee Mary Venture. The testator's express exclusion of Griffis from the will does not preclude his succession rights under the antilapse statute absent a valid disposition of the property by the testator.
[1] A testator's intent to disinherit an heir is ineffective to prevent the heir from taking under an antilapse statute unless the testator makes a valid disposition of the p…
[2] Florida's antilapse statute provides that if a devisee who is a grandparent or a lineal descendant of a grandparent fails to survive the testator, the descendants of the…
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Join FLexlaw to unlock all legal intelligence“The fact that Ms. Scott specifically chose not to provide for Griffis in her will does not preclude entitlement to the devise under the antilapse statute.”
Establishes the core holding that express exclusion alone cannot defeat antilapse statute rights
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Join FLexlaw to unlock all legal intelligenceOllie Scott died testate on August 6, 1993, at age 76 in Bay County, Florida. Her will named her sister Mary Louise Venture as the sole devisee and sp…
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BOOTH, Judge.
This cause is before us on appeal from the trial court’s order denying appellant’s petition for addition of heirs.1 We reverse and remand for further proceedings.
On August 6, 1993, Ollie Scott died testate in Bay County, Florida, at the age of 76. Ms. Scott’s will contained the following pertinent provisions:
ARTICLE I
I hereby request all my property be placed in Trust for the benefit of my Sis ter, MARY LOUISE VENTURE. I hereby name QUITMAN GEORGIA BANK as Trustee of my property. The Trustee may from time to time distribute all or so much of the income or principal of the Trust as the Trustee, in its discretion, deems appropriate for the health, support, maintenance or education of my Sister, MARY LOUISE VENTURE, and any income not so distributed shall be accumulated and added to the principal. Distributions of income or principal to or on behalf of MARY LOUISE VENTURE may be made in any one or more of the following ways:
a) Directly to the beneficiary;
b) By the Trustee expending the income or principal directly for the health, support, maintenance or education of the beneficiary;
c) To the guardian of the person or the estate of the beneficiary;
d) To a relative of the beneficiary under an agreement to expend it for the benefit of the beneficiary.
ARTICLE II
NO PROVISION FOR SPECIFIC HEIRS
I hereby specifically and intentionally make no provisions for EMORY [sic] GRIFFIS, ARCHIE GRIFFIS, JAMES CLARKE and MARK CLARKE.
In an amended petition for administration, the administrator asserted that Mary Venture predeceased Ollie Scott and that no other beneficiaries were known. At or about the same time, Emery Griffis and Archie Griffis filed a petition to add heirs, claiming that they were the natural children of Mary Venture, sister of the decedent. After a hearing, the trial court denied the petition without explanation. This appeal followed.
It is undisputed that the sole devisee, Mary Venture, was Ollie Scott’s sister. Since Venture predeceased the testator Scott, this case is controlled by Florida’s antilapse statute. Florida Statutes section 732.603 (1993) provides in pertinent part as follows:
Unless a contrary intention appears in the will:
(1) If a devisee who is a grandparent, or a lineal descendent of a grandparent, of the testator:
(b) Fails to survive the testator, ...
then the descendants of the devisee take per stirpes in place of the deceased devi-see.
Under the foregoing antilapse statute, Griffis is entitled to take the devise per stirpes if he can show that he is indeed a lineal descendant.
The fact that Ms. Scott specifically chose not to provide for Griffis in her will does not preclude entitlement to the devise under the antilapse statute. In order to cut off an heir’s right to succession, a testator must do more than evince an intention that the heir shall not share in the estate; the testator must make a valid disposition of the property passing under the will. In In re Levy’s Estate, 196 So. 2d 225, 230 (Fla. 3d DCA), cert. denied, 201 So. 2d 550 (Fla.1967), the court held that the lapsed legacies passed pursuant to the antilapse statute to the son and heir of the testator, stating:
The intent of the testator not to include his son and heir among the legatees, as recited in the will, was not accompanied by any language for substitution of another in the place of a named legatee whose testamentary disposition might lapse. As is often the case, the testator did not anticipate lapsed legacies, and made no provision respecting them.
In re Estate of Barker, 448 So. 2d 28, 31-32 (Fla. 1st DCA 1984), follows Levy’s Estate in applying the antilapse statute and holding that the court may not attempt to improve upon the will of a testator and may not alter or reconstruct a will according to the court’s notion of what the testator would or should have done. Accordingly, we REVERSE the trial court’s order denying Griffis’ petition to add heirs and REMAND for proceedings consistent with this opinion.
MICKLE and VAN NORTWICK, JJ., concur. . Although not challenged below, Griffis’ petition to add heirs appears to be a petition to determine heirs under § 733.105, Fla.Stat. (1993).
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- In re Est. of Felix Levy v. Hebrew Tech. Inst., 196 So. 2d 225 (Fla. 3d DCA 1967)
- Eurice v. State, 448 So. 2d 28 (Fla. 2d DCA 1984)
- In re Est. OF Evelyn Agnes Barker v. Broughton, 448 So. 2d 28 (Fla. 1st DCA 1984)
- Feldman v. State, 201 So. 2d 550 (Fla. 1967)
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