Case Law
Shriners Hospitals v. Zrillic
563 So. 2d 64 (Fla. 1990)
Shriners Hospitals is important because it acknowledged that a testator has a constitutionally protected right to devise property. The state does maintain some inherent powers to regulate those rights for the protections of surviving family members who may have been dependent on the testator (ie.: spouse and minor children).
In re Estate of Davol
100 So. 2d 188 (Fla. 3d DCA 1958)
Florida follows a pure per stirpes system for descent of an intestate estate. Under per stirpes, the descendants of a deceased heir take that person’s share by representation. Even if the nearest generation contains no living member, the share distributed to second generation takers depends on their deceased ancestors. In re Estate of Davol, distribution per stirpes among the intestate’s nephews and nieces, who were the only heirs, was required.
Werner v. Estate of McCloskey
943 so. 2d 1007 (Fla. 1st DCA 2006)
In Werner, it was reaffirmed that person representative named by a testator in their will should be appointed so long as the individual is willing to serve and is not disqualified to do so by law. Originally the court appointed McCloskey’s daughter as personal representative. However, McCloskey’s son was McCloskey’s first choice in her will and the son was willing to serve and not disqualified by law. Thus, the daughter’s appointment was reversed.
In re Schiele’s Estate
51 So. 2d 287 (Fla. 1951)
The Florida Statutes require that a will be in writing and signed at the end thereof by the testator himself, or some person in his presence and by his direction. Otto Schiele failed to sign the will on the line at the end prepared for his signature. He did sign in the attestation clause. The court held that whether the signature was at the “end” within the meaning of the statute was to be determined by the facts of the particular case. Here they found the signature in the attestation clause was sufficient to make the will valid
Dalk v. Allen
774 So. 2d 787 (Fla. 5th DCA 2000)
The testator, Ms. McPeak, was signing multiple documents at the meeting with her attorney. There were three duplicate originals of a Durable Power of Attorney, four duplicate originals of a Living Will and Designation of Health Care Surrogate and the original Last Will and Testament. Although McPeak’s Will was witnessed and notarized, she failed to sign it! The will was not admitted to probate because it lacked any signature of the testator. Thus, intestate administration was deemed necessary.
In re Estate of Edwards
433 So 2d 1349 (Fla. 5th DCA 1983)
At issue was whether the decedent had testamentary capacity when he executed his will. Members of decedent’s family claimed that he suffered from “insane delusion” which made him mistrust his own family. The court noted that there were differences between decedent and his siblings that had a known premise. Whether decedent’s feelings were “justified” or not was not a question for the court. The decedent’s attorney testified that he appeared in full possession of his faculties when the will was executed and he understood the effect of the will. The decedent had the testamentary capacity to execute the will.
In re Estate of Carpenter
253 So. 2d 697 (Fla. 1971)
In Carpenter, the Florida Supreme Court laid out seven factors to be considered regarding undue influence which are now known as the “Carpenter factors”:
1) Presence of the beneficiary at the execution of the will;
2) Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
3) Recommendation by the beneficiary of an attorney to draw the will;
4) Knowledge of the contents of the will by the beneficiary prior to execution;
5) Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
6) Securing of witnesses to the will by the beneficiary; and
7) Safekeeping of the will by the beneficiary subsequent to execution.
The Carpenter court stated that these factors are neither mandatory nor exclusive.
Cantero v. Estate of Caswell
2019 WL 4849335
This case involves the issues of the creditor claims period and determining whether a creditor is ascertainable. A creditor who is reasonably ascertainable is entitled to personal Service of Notice to Creditors. The court affirmed that Cantero was not a reasonably ascertainable creditor and his claim was barred as untimely.
Herman v. Bennett
278 So.3d 178 (Fla. 1st DCA 2019)
This case dealt with the 30-day creditor claim period. Florida Statute 733.702 provides that a claim against an estate must be filed on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor. Here, the notice to creditors was first published January 4, 2018. A claim, filed on April 5, 2018 was denied by the Personal Representative as time barred. However, the trial court allowed the claim relying on Florida Rule of Judicial Administration 2.514 which states that when a time period is ambiguous, the clock begins running on the day after the triggering event. The Estate appealed. The court of appeal reviewed the issue de novo because it involved statutory interpretation. The court found that the statute was clear on its face and the time period was three calendar months to the date. The court cited over half a dozen cases in support. Thus, it reversed the trial court as the claim was time barred.
Reno v. Hurchalla
2019 WL 3938297
In this case, former Attorney General, Janet Reno, left the “Reno Homestead” to the University of Miami subject to certain conditions in her Trust. The University declined the gift due to the conditions. Thus, the Trustee, wanting to honor his Aunt’s charitable intent, sought to transfer the property to another non-profit higher education institution (Miami-Dade College) through the trust doctrine of cy pres. Seventy years ago, the Florida Supreme Court explained cy pres: “Roughly speaking, it is the principle that equity will make specific a general charitable intent of a settlor, and will, when an original specific intent becomes impossible or impracticable of fulfillment, substitute another plan of administration which is believed to approach the original scheme as closely as possible.” Christian Herald Ass'n v. First Nat'l Bank of Tampa, 40 So. 2d 563, 568 (Fla. 1949). Other beneficiaries under the will fought the transfer, but ultimately the court authorized the disposition to Miami-Dade College.
Cruz v. Community Bank & Trust of Florida
277 So.3d 1095 (Fla. 5th DCA 2019)
The children of decedent were seeking to invalidate their father’s will that created a trust benefiting charities. The children claimed their father lacked testamentary capacity when he wrote the new will creating the trust. The trustee held that the children were not interested parties and did not have standing to challenge the will. The appellate court said because the children would inherit under the old will or intestacy, they were interested parties and had standing.
Samad v. Pla
267 So.3d 476 (Fla. 2nd DCA 2019)
Florida Statute 732.401 provides that a surviving spouse takes a life estate in the homestead of a decedent. The vested remainder of the homestead goes per stirpes to the descendants in being at the time of decedent’s death. In lieu of a life estate, the surviving spouse may elect to take an undivided one-half interest in the property. This election must be made within six months of the decedent’s death. Here, the surviving spouse moved for an extension of the time period to make such an election after six months claiming excusable neglect. The court ruled that excusable neglect is allowed when a rule is not followed during the time proscribed, but not when a statute is violated. Accordingly, the surviving spouse’s extension of time was denied.
