JACK S. CAREY AND GLORIA DUBOIS, APPELLANTS/CROSS-APPELLEES,
v.
JACQUELINE ROCKE, APPELLEE/CROSS-APPELLANT
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This case involves an appeal and cross-appeal concerning the probate of a will. The appellate court affirmed the trial court's decision to void the residuary clause due to undue influence but reversed and remanded the decision regarding how the residuary estate should pass, specifically whether it should pass by intestacy or under a prior will.
The court held that the residuary clause was properly voided due to undue influence. However, the court could not determine from the record whether the trial court considered the doctrine of dependent relative revocation in deciding the estate should pass by intestacy, thus reversing and remanding that specific issue.
[1] A residuary clause in a will may be voided if the beneficiaries fail to demonstrate that the bequests were free from undue influence.
[2] When a residuary clause is voided due to undue influence, the residuary estate may pass by intestacy.
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Join FLexlaw to unlock all legal intelligence“The trial court voided the residuary clause of the will based upon a finding that Mr. Carey (the decedent’s attorney) and Ms. DuBois (Mr. Carey’s legal assistant) failed to show that the residuary bequests to them were free from undue influence; declared that the residuary estate would pass by intestacy; and admitted the balance of the will to probate.”
Describes the trial court's decision that is being appealed.
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Join FLexlaw to unlock all legal intelligenceAppellants appealed a trial court order that voided the residuary clause of a will due to undue influence by the decedent's attorney and his legal ass…
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Jack S. Carey and Gloria DuBois appeal a final order granting in part and denying in part Jacqueline Rocke’s objection to the petition for administration of the February 1994 will of Virginia Murphy. The trial court voided the residuary clause of the will based upon a finding that Mr. Carey (the decedent’s attorney) and Ms. DuBois (Mr. Carey’s legal assistant) failed to show that the residuary bequests to them were free from undue influence; declared that the residuary estate would pass by intestacy; and admitted the balance of the will to probate. Ms. Rocke, Mrs. Murphy’s cousin, cross-appeals contending that the trial court should have allowed the residuary estate to pass to her under the bequest in Mrs. Murphy’s February 1992 will so that the residuary estate would pass by testacy rather than intestacy. We affirm without discussion in all but one respect.
In its well-reasoned and lengthy order the trial court explained why the residuary clause of the February 1994 will had to be voided. The trial court then determined that the residuary estate would pass by intestacy rather than by testate succession under a residuary clause set forth in one of Mrs. Murphy’s many prior wills. We are unable to determine from the record whether the trial court considered the doctrine of dependent relative revocation in deciding that the residuary estate should pass by intestacy. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1007-10 (Fla. 5th DCA 2005) (discussing the doctrine of dependent relative revocation). Because we cannot make that determination based on the record before us and the decision as to whether the residuary clause in one of Mrs. Murphy’s prior wills is enforceable necessarily requires factual determinations in this case, we reverse this portion of the order and remand for further proceedings on this issue.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
FULMER and WALLACE, JJ„ Concur.
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Citator
Cited By
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D.P. "Rick" Wood v. Unknown Personal Representative OF the Estate OF Samuel E. Burnette and Sharon K. Burnette, 56 So. 3d 74 (Fla. 2d DCA 2011)
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In re Est. OF Va. E. Murphy. Jacqueline Rocke v. Am. Research Bureau, 184 So. 3d 1221 (Fla. 2d DCA 2016)
Authorities Cited
- Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005)