IN RE ESTATE OF MERRY A. FREEMAN, DECEASED
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The Florida District Court of Appeal reversed a probate trial decision denying revocation of a will, finding that the trial judge erred by allowing the executor's attorney to testify as a witness on the critical issue of testamentary capacity while simultaneously representing the executor at trial.
Yes. The trial judge erred by allowing the attorney to testify under these circumstances and over proper objection. The case must be reversed and remanded for a new trial.
[1] A trial court errs by permitting an attorney to testify in a case where the attorney is representing a party and has been excluded from the courtroom under the witness ex…
[2] The witness exclusion rule generally requires the exclusion of all witnesses from the courtroom, including an attorney for a party, when that attorney is expected to test…
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Join FLexlaw to unlock all legal intelligence“By permitting the attorney to testify under these circumstances and over proper objection, we believe the trial judge erred.”
The court's holding that the trial judge's decision to allow the executor's attorney to testify constituted reversible error.
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Join FLexlaw to unlock all legal intelligenceMerry A. Freeman died leaving a will. Her three natural children, as appellants, petitioned to revoke the will, challenging the testator's testamentar…
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The appellants are the three natural children of Merry A. Freeman, deceased. Their appeal concerns an order which denied their petition to revoke her last will and testament.
*657One of the critical points in the trial involved the testamentary capacity of the deceased, Merry A. Freeman. Prior to trial the appellants invoked the rule to exclude all witnesses from the courtroom. The attorney for the executor was a witness to the will and was expected to testify in the cause. It was, therefore, requested that he be excluded from the courtroom. This request was denied and he was permitted to remain. During the trial he was called as a witness. The appellants’ objections to his testifying on several different grounds were overruled. He stated that when he learned that a petition to revoke the probate of the will had been filed and since he expected to be called as a witness he notified the beneficiaries under the will to obtain other counsel to conduct the trial. He continued to represent the executor, however, and did so during the trial. He testified on the crucial point concerning his opinion of the testamentary capacity of the deceased, Merry A. Freeman, and on many other evidentiary matters, other than merely formal matters such as attestation or custody of the will.
By permitting the attorney to testify under these circumstances and over proper objection, we believe the trial judge erred. See Millican v. Hunter, Fla.1954, 73 So.2d 58; Dudley v. Wilson, Fla.1943, 152 Fla. 752, 13 So.2d 145; Hubbard v. Hubbard, Fla.App.1970, 233 So.2d 150; 35 Fla. Jur. Witnesses § 72; and Code of Ethics, Rule B, § 19, 32 F.S.A.
We must reverse and remand the case for a new trial. We do not, therefore, consider the other points which have been assigned as error.
Reversed and remanded for new trial.
ON REHEARING
PER CURIAM.
The appellees in their petition for rehearing point out that the appellants did not argue, in their brief, any assignments of error directed to the judgment of the trial court which denied the petition to set aside certain real property as the homestead of Merry A. Freeman.
Their position appears to be correct and that judgment should have been and is hereby affirmed. See Saxton v. Miller, Fla.App.1970, 230 So.2d 685.
PER CURIAM.
The appellees in their petition for rehearing point out that the appellants did not argue, in their brief, any assignments of error directed to the judgment of the trial court which denied the petition to set aside certain real property as the homestead of Merry A. Freeman.
Their position appears to be correct and that judgment should have been and is hereby affirmed. See Saxton v. Miller, Fla.App.1970, 230 So. 2d 685.
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Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA 1972)…be very careful in testifying for a client while handling the trial. Dudley v. Wilson, 152 Fla. 752, 13 So. 2d 145; Millican v. Hunter, Fla.1954, 73 So. 2d 58; Hubbard v. Hubbard, Fla.App.1970, 233 So. 2d 150; In Re Estate of Freeman, Fla.App.1970, 240 So. 2d 656. As to the defense calling counsel-in-chief to [*333] testify as an adverse witness, we do not find any error in this regard because to do so would be to permit defense counsel to force a disassociation between counsel and client, which the courts d…
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Hardemon v. Fish, 325 So. 2d 411 (Fla. 3d DCA 1976)…on for summary judgment, because this is contrary to Canon 5, EC 5-9, DR 5-102, Code of Professional Responsibility; Millican v. Hunter, Fla.1954, 73 So. 2d 58; Hubbard v. Hubbard, Fla.App.1970, 233 So. 2d 150; In Re Estate of Freeman, Fla.App.1970, 240 So. 2d 656. Counsel would not have been permitted to testify at the trial because of these authorities and, therefore, the trial judge should not have considered his affidavit as to the condition or competence of the grantor at the time he executed the deed. D…
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Ioana Draganescu v. First Nat'l Bank OF Hollywood, 502 F.2d 550 (5th Cir. 1974)…)(1) through (4). Although there has been little interpretation of the current provisions.2 Florida courts have regularly applied the previous incarnation of these provisions.3 Thus, in In re Estate of Freeman, Fla.Dist.Ct. of App., 3d Dist., 1970, 240 So. 2d 656, the court reversed a trial judge who allowed a witness to the testamentary capacity of the deceased to continue as executor’s counsel. In Dudley v. Wilson, 1943, 152 Fla. 752, 13 So. 2d 145, the Florida Supreme Court upheld the decision of the lowe…
Authorities Cited
- Dudley v. Wilson, 152 Fla. 752 (Fla. 1943)
- Millican v. Hunter, 73 So. 2d 58 (Fla. 1954)
- Hubbard v. Barrie Bassett Hubbard, 233 So. 2d 150 (Fla. 4th DCA 1970)
- Walker v. State, 152 Fla. 540 (Fla. 1943)
- Saxton v. Miller, 230 So. 2d 685 (Fla. 4th DCA 1969)