PROBATE CORNER
PROBATE CORNER
Reopening An Estate – It ’ s Not As Easy As You Think ( Continued )
DAVID M . GARTEN
In First Florida Bank , N . A . v . Shafer , 503 So . 2d 459 ( Fla . 2d DCA 1987 ), the decedent ' s husband (“ respondent ”), was the primary beneficiary under his late wife ’ s will and the co-trustee of her testamentary trust . After probate was closed , the deceased ' s daughter (“ petitioner ”) filed a petition to reopen probate alleging that respondent had caused his wife to transfer a substantial portion of her assets to him prior to her death and had exercised undue influence over his wife regarding the preparation of her will . The trial court denied the motion and the appellate court affirmed on the basis of statute of limitations . The court concluded that it was error for the trial court to entertain the petition to reopen probate in the same action in which order of discharge was rendered . The court held that “[ w ] here extrinsic fraud is alleged , the rule does indeed preserve the equitable remedy of an independent action , but " the action is not a continuation of the action in which the judgment . . . under attack was entered . A new complaint is filed , service of process is made and the new action follows the same procedure as other civil actions ." [ citations omitted ].” The case was remanded to the trial court to grant petitioners ' motion to dismiss without prejudice to the daughter ' s attempt to initiate an independent action challenging the probate of her mother ' s will .
In Fritsevich v . Estate of Voss , 590 So . 2d 1057 ( Fla . 3d DCA 1991 ), decedent died intestate . After the notice of administration was published , petitioners file a petition to determine heirs arguing that respondent had fraudulently represented that she was the decedent ’ s first cousin and her sole heir . The probate court determined that respondent was the sole beneficiary , distributed the estate assets , issued an order of discharge and closed the estate . Petitioners subsequently filed suit seeking to reopen the estate , to re-determine the decedent ' s heirs , and to reimburse distribution . The court granted respondent ’ s summary judgment on the basis of statute of limitations . The appellate court reversed . The court held that that summary judgment was inappropriate since respondent ’ s misrepresentation , if true , denied the petitioners access to the estate proceeding thus constituting a fraud upon the court .
In Grimes v . Estate of Stewart , 506 So . 2d 465 ( Fla . 5th DCA 1987 ), after the estate was closed , the petitioner filed an objection to the distribution of assets and a petition to revoke probate . Petitioner alleged that she is an heir at law and niece of the decedent and a beneficiary of the decedent ’ s inter vivos trust and will . As an interested party , petitioner was entitled to notice of the probate of her aunt ' s estate . Although the respondent / PR knew these facts , he failed to provide her with notice and failed to identify any person other than himself as a beneficiary of the estate . In addition , Respondent had the decedent declared incompetent and three months prior to her death procured her execution of the will which was probated . The probate court dismissed the petition because it was untimely . The appellate court reversed because the petition was timely and petitioner had sufficiently alleged fraud as a basis to open the estate after the order of discharge . In addition , the court held that “[ a ] n adjudication of incompetency of a testator creates a prima facie case against the proponent of such a will . Such a situation imposes a duty on the part of the proponent to reveal to the probate court and all known beneficiaries the fact of the decedent ' s incompetency .
In Liechty v . Hall , 687 So . 2d 64 ( Fla . 5th DCA 1997 ), the appellate court reversed an order dismissing with prejudice petitioner ’ s verified petition for revocation of probate and petition for subsequent administration on the basis that the will admitted to probate was a forgery . The court held that fraud was recognized as a justification for reopening an estate even after an order of discharge of the personal representative had been entered . The court indicated that on remand , petitioner must have leave to file amended petitions that more fully plead the facts and circumstances surrounding the fraud or forgery , or its discovery .
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UPCOMING PBCBA SOCIAL EVENTS
Saturday , November 4 th 7:30 A . M . - 9:30 A . M . Okeeheelee Park 8th Annual YLS Annual 5K
Thursday , November 9 th 8:00 A . M . - 12:00 P . M . Main Courthouse
New Attorney Breakfast
Thursday , November 16 th 5:30 P . M . - 7:30 P . M . Location TBD Paralegal Happy Hour
Thursday , November 30 th 5:00 P . M . - 7:30 P . M . Location TBD YLS No Shave November
For more events , please visit : www . palmbeachbar . org / calendar
PBCBA BAR BULLETIN 13