Notice to caveators prior to will's admission to probate.
Must a caveator be given prior notice of the petition for administration? F.S. [sections] 733.203(1) provides that if a person who is an "heir"(1) or is "a devisee under a will other than that being offered for probate" files a caveat, then the provisions of F.S. [sections] 733.2123 must be followed prior to the admission of the will to probate by requiring that a copy of the offered will be attached to the notice. F.S. [sections] 733.2123 requires that notice be given to "interested persons" prior to the admission of the will to probate. This article will attempt to answer whether that heir or devisee who filed the caveat must be given prior notice of the petition for administration. The knee-jerk answer to that question would seem to be in the affirmative, but is that necessarily true?
F.S. [sections] 733.203(1) causes the provisions of F.S. [sections] 733.2123 to become mandatory, rather than permissive, but F.S. [sections] 733.2123 merely provides for notice to "interested persons." Fla. Prob. R. 5.260(f) provides: "After the filing of a caveat by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator's designated agent." (Emphasis added.)
Nowhere in F.S. [sections] 733.203(1), Fla. Prob. R. 5.260, or F.S. [sections] 733.2123 does it specifically state that an heir or a devisee under a will other than that being offered for probate, who filed a caveat, must receive prior notice of the petition for administration. Rather, all those provisions speak in terms of notice to an interested person.
The early case of In Re Switzer's Estate: Street v. Crosthwait, 134 Fla. 158 (1938), clarified in 136 Fla. 327 (1939), seems to indicate that the caveator(2) is automatically entitled to notice. In that case the beneficiary of a will filed a caveat and the will was then admitted to probate without prior notice to the caveator. Id. at 160. The court held that the caveator was entitled to prior notice and remanded the case for further proceedings. However, that case dealt with then existing statute [sections] 5467, C.G.L. (1927), which provided in pertinent part:
If he be apprehensive that the will may be admitted to probate without his knowledge, he may file in the office of the county judge a caveat, and after the filing of the same the county judge shall not admit the will to probate until he shall have given at least ten days' notice to the caveator, or some other person to be named in the caveat, if such caveat or some other person be found in the county. (Emphasis added.)
Id. at 163.
As can be seen from the then existing statute, notice was required to be given to the "caveator" as opposed to the current statutory and probate rule requirements of giving notice to "interested persons."
In another case, Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994), the court dealt with an instance in which the caveators had filed a caveat requesting that the court not admit a will to probate without notice to the caveators. The appellees had filed a petition for probate requesting the admission of the contested will and the caveators filed an objection challenging the validity of the will on the grounds of undue influence. Id. at 1020. The trial judge denied the objection saying he had no discretion but to appoint the named personal representative as such. Id. The court of appeals considered Fla. Prob. R. 5.260 and F.S. [sections] 733.2123 and held that when a caveat was filed before the admission of the will to probate, the trial court was required to hear the will challenge before admitting the will to probate. Id. at 1020-21. In doing so the court held: "These provisions, read together, require that if a caveat is filed, formal notice of the submission of a will for probate must be given. Thereafter, the court must adjudicate any challenge to the will before admitting the will to probate." Id. at 1021.
It is important to note that the precise issue being decided by the Grooms court was whether the will contest had to be heard before the admission of the will to probate and the appointment of the personal representative. The court correctly said that it did. Id. The court, however, did not decide whether it was their status as "caveators" or as "interested persons" that entitled them to notice. The court merely stated the requirements of the probate rule(3) and the statute,(4) and concluded that the will contest must be heard before the admission of the will to probate. Id. at 1020-21.(5)
Therefore, based on Grooms, it can be concluded that if an interested person files a caveat and that interested person is an heir or a devisee under a will not being offered for probate, he or she is entitled to receive notice prior to the admission of the will to probate. Nonetheless, are heirs and devisees under a will other than that being offered for probate automatically interested persons? Obviously, the definition of "interested person" must be reviewed to answer that question.
An "interested person" is defined in F.S. [sections] 731.201(21) as:
any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration of the estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor's estate. The term does not include an heir at law or a devisee who has received his or her distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.
It is important to recall the purpose of the applicable statutes and probate rule. F.S. [sections] 733.203(1) is designed to "flush out" a potential will contest before the probate process goes too far by providing that if the persons who are likely to have some interest in the validity of the will being offered for probate6 file a caveat, then the proponent of the will must notify them as "interested persons."
Assuming for the moment that the filing of the caveat requires formal notice of the petition for administration to be given to the caveator, is that a beneficial result for the estate? Obviously, it gives the caveator an opportunity to challenge the will's validity prior to the person named in the will to be the personal representative being confirmed as such. As a result, the will's proponent is embroiled in a will contest before he or she has the ability to control the estate. However, it is submitted that F.S. [sections] 733.203(1), coupled with F.S. [sections] 733.2123, only requires notice to interested persons. Therefore, what the statutes and probate rule are saying is that the people who must receive this prior notice must have some stake or interest in the proceedings. Implicit in the description of the caveator entitled to notice under F.S. [sections] 733.203(1) is that not only must he or she be an heir or a person who is a devisee under a will other than the one being offered for probate, but also he or she must be an heir or devisee who would be affected by the "nonprobate" of the will being offered. That is to say, it must be someone who would stand to benefit from the estate if the offered will were not probated (i.e., an "interested person"). The effect of the notice prior to administration is to allow the will contest to occur before the will is admitted to probate.
Thus, it would appear that the overriding question of whether a caveator, who is also an heir or a devisee under another will, is entitled to notice automatically is determined by whether he or she is an interested person. On the one hand, looking first at the issue with respect to an "heir," the answer must be in the affirmative. Specifically, assuming the will being offered for probate is not valid and there is no other valid will, then the decedent died intestate.(7) If the decedent died intestate, then the "heir" is obviously an interested person because he or she then "may reasonably be expected to be affected by the outcome of the particular proceeding involved." F.S. [sections] 731.201(21).
On the other hand, does a "devisee under a will other than that being offered for probate" automatically meet the definition of being a person "who may reasonably be expected to be affected by the outcome of the particular proceeding involved"? It is submitted that the answer to that question is "not necessarily."
Specifically, a devisee under a second previously executed will is not, without more, necessarily a person "who may reasonably be expected to be affected by the outcome of the particular proceeding involved." That is to say, if the will being offered for probate is invalid, in order for the devisee under the second prior will to be affected, several things must be true. First, the doctrine of dependent relative revocation must be applicable and the next previous will similarly must be completely invalid.(8) Otherwise the devisee of the second previously executed will could not meet the test of "being reasonably expected to be affected by the outcome to the challenge of the validity of the will being offered for probate."
One case touched on this issue. In Cares v. Fricker, 529 So. 2d 1253 (Fla. 2nd DCA 1988), the decedent's daughter attempted to challenge the offered will, under which she had been excluded. The action was brought under the statute allowing for the revocation of probate, but the case is still enlightening. The court recognized that an heir at law could be an interested party, but the court said the daughter had "properly" been determined not to be an heir at law.(10) The court also noted that she had been excluded from two previous wills. Id. Under the doctrine of dependent relative revocation, those previous wills would have precluded her interest, but the court recognized that the application of the doctrine of dependent relative revocation is not always required and, therefore, if the doctrine was not applied, then the decedent's heirs would be interested. Id. However, as stated previously, the daughter had been "properly' determined not to be an heir at law. Id.
The court then stated:
[W]hen an at least facially valid previous will is before the court, the burden is on the potential heir at law who wishes to contest a will to show that the previous will which excluded the contestant was invalid or that the doctrine of dependent relative revocation did not apply. Such facial validity may be shown, as it was here, through copies of previous wills which include copies of the signatures of the testator and witnesses and of the notary certificate.
Id. at 1254-55.
The significance of this holding is that the court is basically saying that a contestant to a will must at least make a showing that if the contested will is not valid, the contestant stands to gain some benefit and is thus an interested person.
In light of the holding in Cates, it is submitted that a prudent caveator under F.S. [sections] 733.203(1) should assert in the caveat that he or she is an "interested person" (i.e., he or she reasonably expects to be affected by the probate or lack of probate of the will being offered for probate). Moreover, if a will is offered for probate and a caveat is filed by a devisee under a prior will, it may be advantageous for the will proponent to attempt to obtain admission of the will without notice to the caveator by arguing that the mere filing of the caveat does not establish that the devisee is an interested party. It is submitted that unless the caveat alleges the caveator's "interest," then the court could admit the will to probate without notice to that caveator.
(1) F.S. [sections] 731.201(18) equates the terms "heir" and "heir at law." Specifically that section provides: "Heirs" or "heirs at law" means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(2) In this case, the heir or the devisee under a will other than that being offered for probate.
(3) Fla. Prob. R. 5.260.
(4) Fla. Stat. [sections] 733.2123.
(5) A will contest is a statutory creature, 79 Am. Jur 2d, Wills [sections] 844 (1975), and can occur before the will is admitted to probate or after to advocate the probate of another will or intestacy. 18 Fla. Jur. 2d, Decedent's Property [sections] 274 (1997).
(6) That is an heir or a devisee under a will other than that being offered for probate.
(7) A decedent would not necessarily be intestate if the offered will is invalid, because if there were a prior will and the doctrine of dependent relative revocation was applied, the prior will may be resurrected and intestacy avoided.
(8) For example, if it were only invalid as to its dispositive provisions and yet contained a valid standard clause revoking all prior wills, the devisee under the second prior will would be unaffected because the first prior will, while being ineffective for the purpose of testamentary disposition, could be effective for the purpose of revocation of the second previous will. E.g., In re Emma Jones, 352 So. 2d 1182 (Fla. 2d D.C.A. 1977).
(9) Id. at 1254. The relevant statute is Fla. Stat. [sections] 733.109.
(10) Id. The court did not elaborate on why the daughter would not be an heir at law.
Mark R. Lewis, Sr., has been practicing law 24 years, 22 of which have been in St. Petersburg. He is a graduate of the U. of Cincinnati schools of law and engineering. Mr. Lewis is a sole practitioner and concentrates his practice in probate and commercial litigation, estate planning, and real estate and corporate law.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Bruce Stong chair, and Brian C. Sparks and Melissa Murphy, editors.
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|Author:||Lewis, Mark R., Sr.|
|Publication:||Florida Bar Journal|
|Date:||Oct 1, 1998|
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