PROBATE CORNER
PROBATE CORNER
Reopening An Estate – It ’ s Not As Easy As You Think ( Continued )
DAVID M . GARTEN
In Padgett v . Estate of Padgett , 318 So . 2d 484 ( Fla . 1st DCA 1975 ), almost two months after the order of discharge was filed , petitioner filed a petition to set aside the order of distribution claiming that the testator was incompetent or under undue influence . The probate court ruled that the petition was barred because it was not filed prior to the order of discharge . The order was affirmed on appeal . The court held that the statutory period allowed to an heir or distributee to petition the court for revocation of probate was binding in the absence of factual allegations of fraud , overreaching or mistake as to reasonably require investigation by the court . As there were no such allegations , the trial court did not commit err in dismissing the petition .
In Payette v . Clark , 559 So . 2d 630 ( Fla . 2d DCA 1990 ), the decedent ’ s intestate estate was distributed to the named beneficiaries and a final order of discharge was entered . Although Petitioner was a beneficiary , she was not listed as a beneficiary or interested party , received no notice , and was not included in the distribution . After the estate was closed , the petitioner filed a motion to re-open the estate . The probate court denied the motion on the basis of statute of limitations . The appellate court reversed . The court reasoned , in part , that if the allegations of omissions and misrepresentations on the part of the personal representative are true they constitute fraud upon the court and the estate should be reopened .
In Sokol v . Moses , 545 So . 2d 950 ( Fla . 3rd DCA 1989 ), the decedent died leaving four adult children . Respondent filed a petition for family administration declaring that her mother had died leaving a will in which respondent was the sole beneficiary . The three remaining children signed affidavits confirming the petition for family administration and a Waiver of Priority ,
Consent to Appointment of Personal Representative , and Waiver of Notice and Bond . The probate court entered an Order of Family Administration ordering immediate distribution of the decedent ' s assets to respondent . Over a year later , petitioner filed a complaint in the civil division which was dismissed without prejudice . Thereafter , the petitioner filed the following petitions in the probate division : an amended petition for appointment of an administrator ad litem , and an amended petition to revoke probate , to set aside an order of family administration , to probate a later discovered will , and for injunctive relief . The petitions were declared adversary . The probate court denied the petitions . The appellate court affirmed on the basis of statute of limitations .
In Tillman v . Falconer ( In re Estate of
Clibbon ), 735 So . 2d 487 ( Fla . 4th DCA 1998 ), approximately ten months after the PR had been discharged , petitioners filed a petition to reopen the estate on the basis of fraud or mistake . Petitioners alleged that decedent executed her will a few days after entering a nursing home and died twenty-two months later , her prior will named petitioners as beneficiaries , and respondent failed to give notice to petitioners of the probated will in order to avoid an attack on the validity of the prior will . The lower court granted respondent ’ s motion for summary judgment and the appellate court affirmed . The court reasoned that petitioners ’ allegations were insufficient to constitute the type of fraudulent misconduct that were acceptable grounds for reopening decedent ' s estate and “ that , in order for rule 1.540 ( b ) to apply , the disputed order must have been entered in an adversary proceeding , and the movant must have been a " party or party ' s legal representative " to that proceeding .” [ emphasis added ]. The order of discharge which appellants seek to set aside was not entered in an adversary proceeding .
PBCBA BAR BULLETIN 14
PRACTITIONER ’ S CORNER : The majority of the cases turn on the application of Fla . R . Civ . P . 1.540 ( b ) which has a oneyear statute of limitations to vacate a judgment , decree , order , or proceeding . The one-year statute of limitations applies to “( 1 ) mistake , inadvertence , surprise , or excusable neglect ; ( 2 ) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing ; and ( 3 ) fraud ( whether heretofore denominated intrinsic or extrinsic ), misrepresentation , or other misconduct of an adverse party ” and constructive fraud ( see § 95.031 ( 2 )( a ), F . S .). Fraud on the court is excluded . See Rule 1.540 ( b )( 5 ).
Sec . 731.107 , F . S . provides that the “ rules of civil procedure shall be applied in any adversary proceeding in probate .” See also Rule 5.025 ( d )( 2 ) which provides that “ after service of formal notice ,… The Florida Rules of Civil Procedure govern …”. Therefore , Rule 1.540 only applies to probate proceedings if the proceeding at issue is an “ adversarial proceeding ”, either specified or declared adversarial , pursuant to Fla . Prob . R . 5.025 ( a ) and ( b ). If the judgment or order at issue is not the subject of an adversarial proceeding , then the statute of limitations is governed by Ch . 95 , F . S . See Van Dusen v . Southeast First Nat ' l Bank , 478 So . 2d 82 ( Fla . 3rd DCA 1985 ).