YOLANDA LACALLE, APPELLANT,
v.
MANUEL BARQUIN, APPELLEE
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In this probate appeal, the court reversed a trial court's dismissal of LaCalle's petition to establish a lost or destroyed will, holding that the petition adequately alleged the required facts and that evidence outside the petition—including witness affidavits—cannot be considered on a motion to dismiss.
The petition to establish a lost or destroyed will was sufficiently pleaded under Florida Probate Rule 5.510(b) and could not be dismissed on a motion to dismiss based on matters outside the four corners of the petition. A petition for administration of a will and a petition to establish a lost or destroyed will are different proceedings, and the prior grant of administration of an earlier will does not preclude or estop advancement of the petition to establish the lost or destroyed will.
[1] A petition to establish a lost or destroyed will must include a statement of the facts constituting grounds for relief and the contents of the will or a copy thereof.
[2] A petition to administer an earlier will does not preclude a subsequent petition to establish a lost or destroyed will.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A petition brought to establish a lost or destroyed will in probate, "shall include a statement of the facts constituting grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will."”
Establishes the pleading requirements for a petition to establish a lost or destroyed will under Florida Probate Rule 5.510(b).
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Join FLexlaw to unlock all legal intelligenceYolanda LaCalle filed an adversary proceeding in probate seeking to establish a lost or destroyed will executed by the decedent and to revoke administ…
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SHEPHERD, J.
This is an appeal from a final order granting a motion to dismiss an adversary proceeding in probate, brought by Yolanda LaCalle to establish a lost or destroyed will and to revoke administration of an earlier will. A petition brought to establish a lost or destroyed will in probate, “shall include a statement of the facts constituting grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will.” Fla. Prob. R. 5.510(b); see, e.g., Carlton v. Sims (In re Estate of Carlton), 276 So. 2d 832 (Fla.1973).
The petition in this case alleges the decedent “executed, published, and declared a written document as his Last Will and Testament .... [,]” and that “[t]he original ] of the Last Will and Testament ... [was] lost or destroyed without the knowledge or consent of [the decedent] .... ” The petitioner also attached a copy of the unsigned document, along with a signed trust instrument and warranty deed of even date. This is sufficient.1 See Fla. Prob. R. 5.510(b).
The trial court might have been misled by affidavits — attached to the motion to dismiss — of the two parties alleged to have witnessed the execution of the destroyed will, stating they “do not recall” having witnessed the will’s execution; or the trial court might have been swayed by Movant’s argument that a petition to administer another earlier-dated will already had been granted. The latter fact does not preclude or estop the advancement of LaCalle’s petition. A petition for administration of a will and a petition to establish a lost or destroyed will in probate are different proceedings. See Lowy v. Roberts, 453 So. 2d 886 (Fla. 3d DCA 1984).
As to the former, it is apodictic that matters dehors the four corners of a complaint or petition may not be considered on a motion to dismiss. See Fla. Prob. R. 5.025(d)(2) (“[T]he proceedings [to probate a lost or destroyed will], as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, ... ”); see also Pizzi v. Cent. Bank & Trust Co., 250 So. 2d 895, 897 (Fla.1971) (holding — on a motion to dismiss — that “[t]he court must confine itself strictly to the allegations within the four corners of the complaint” (quoting Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968))); N.E. at West Palm Beach, Inc. v. Horowitz, 471 So. 2d 570, 570-71 (Fla. 3d DCA 1985) (“The purpose of a motion to dismiss is to ascertain whether a plaintiff has alleged a good cause of action and the court must confine itself strictly to the four corners of the complaint.”).
Accordingly, we reverse the order dismissing the adversary petition filed by La-Calle in this case and remand for further proceedings.
. Florida Probate Rule 5.510(b) also requires a petition to establish a lost or destroyed will in probate to "recit[e the]' information required under these rules for petition for administration....” No issue was raised with respect to this requirement in this case.
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Authorities Cited
- Pizzi v. Cent. Bank & Tr. Co., 250 So. 2d 895 (Fla. 1971)
- Kest v. Nathanson, 216 So. 2d 233 (Fla. 4th DCA 1968)
- N.E. AT W. Palm Beach, Inc. v. Horowitz, 471 So. 2d 570 (Fla. 3d DCA 1985)
- In re Est. of Perry Carlton v. Sims, 276 So. 2d 832 (Fla. 1973)
- Onelia Padron Lowy v. Roberts, 453 So. 2d 886 (Fla. 3d DCA 1984)