DOLORES A. LARKIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KATHERINE DESTELI, DECEASED, PETITIONER,
v.
WILLIAM C. PIRTHAUER, RESPONDENT
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.
An order disqualifying counsel in a probate proceeding is not a final order but is reviewable by certiorari.
The personal representative of an estate seeks to appeal an order disqualifying her counsel, who also prepared the decedent's will. The decedent's son…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Testamentary Capacity cases and more on FLexlaw
PER CURIAM.
The personal representative of an estate seeks review of an order disqualifying her counsel. She seeks to appeal it as a final order; however, an order disqualifying counsel does not “finally determine a right or obligation of an interested person” in a probate proceeding, as provided by Florida Rule of Appellate Procedure 9.110(a)(2), which now governs appeals of probate orders. Orders disqualifying counsel, are, however, reviewable by certiorari, Hilsenroth v. Burstyn, 432 So. 2d 640 (Fla. 4th DCA 1983), and we consider this appeal as a petition for certiorari.
Shortly prior to her death, the decedent disinherited her son by means of a will prepared and witnessed by attorney Steven Fine. Decedent’s son, who is seeking to set aside the will on the grounds of lack of testamentary capacity and undue influence, filed a motion to disqualify Fine from acting as counsel for the personal representative, on the ground that Fine would be a witness in the will contest. The motion was grounded on Rule 4-3.7, R.Regulating Fla.Bar, which generally prohibits lawyers from being advocates at trials at which they will be witnesses on matters of substance.
Given counsel’s involvement in the preparation and execution of the will, and the issues which will be involved in the will contest — testamentary capacity and undue influence — we conclude that the trial court was correct in disqualifying counsel. Although the order of disqualification does not so provide, we interpret it to disqualify counsel only from the litigation, and not from other matters pertaining to the administration of the estate.
Certiorari denied.
WARNER, KLEIN and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003)…ablished any departure from the essential requirements of law. See R. Regulating Fla. Bar 4-3.7(a) (precluding lawyer from acting as advocate at a trial where the lawyer likely will be necessary witness on behalf of the client); Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). However, we conclude that the order was too broad in not limiting the disqualification to trial advocacy, an issue which petitioners clearly raised below in their reply to the motion. See Columbo v. Puig, 745 So. 2d 1106, 1107 (…
-
Teena Herschowsky v. The Guardianship OF Julius Herschowsky, 890 So. 2d 1246 (Fla. 4th DCA 2005)…d last will and testament. Certiorari lies to review a trial court order granting a motion to disqualify counsel. The movant must demonstrate a departure from the essential requirements of law resulting in irreparable harm. See Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). It is well settled that disqualification, contrary to the wishes of counsel and client, should be resorted to rarely. See Arcara v. Philip M. Warren, PA., 574 So. 2d 325 (Fla. 4th DCA 1991). The trial court has discretion in ru…
-
Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006)…e are obviously contested matters of substance, and Mr. Salter’s testimony is well beyond a mere formality. The trial court’s application of the rule to these facts appears to be with [*661] in its authority, and is supported by Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). There, as here, the disqualification of the attorney for a personal representative by the trial court was approved where the attorney prepared the will and supervised its execution, and where the issues before the trial court co…
Authorities Cited
- Hilsenroth v. Judah Burstyn & Eileen Burstyn & H.B.C. Realty, Inc., 432 So. 2d 640 (Fla. 4th DCA 1983)