Florida Probate Caveat
CAVEATOR BEWARE:Rocca v. Boyansky, 80 So.3d 377 (Fla. 3d DCA 2012)
Matthew Rocca is the grandson of decedent, Sidney Boyansky. Sidney had included Matthew in his estate planning documents until he executed November 2007 documents that cut Matthew out. Sidney died on April 23, 2009. On June 10, 2009, Sidney’s surviving spouse filed a Petition for Administration to admit the 2007 will to probate. On August 21, 2009, Matthew filed a caveat.
In Florida, a caveat is a document that an interested person or a creditor may file with the probate court that alerts would-be personal representatives or proponents of wills to the existence of this person and his claim in the estate. Florida Statute §731.110(1) provides that “any interested person who is apprehensive that an estate, either testate or intestate[meaning with a will or without a will, respectively], will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court. The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered."
The filing of a caveat triggers a procedural rule, namely Fla.R.Probate 5.260(f), which states that “after the filing of a caveat by an interested person other than a creditor, the court must 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."
So on August 25, 2009, four days after Matthew filed his caveat, the surviving spouse filed an Amended Petition for Administration and served it via Formal Notice on Matthew. Formal Notice involves a copy of the pleading (in this case the Amended Petition for Administration) being served on the interested person together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice and to file the original of those defenses with the clerk of court. The notice also notifies the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded." Fla.R.Probate 5.040(a)(1) [The word “may" is important because it means the court has discretion.]
Matthew received his formal notice on August 31, 2009 but he filed his objection one day late on September 21, 2009. He then obtained an extension from the court to file more detailed objections by December 15, 2009. The surviving spouse set her Amended Petition for Administration for motion hearing on December 22, 2009. She scheduled it for a date after the time for Matthew to file his objection and provided notice to Matthew of the hearing. Matthew again failed to timely file his amended objections. Instead, he delivered it to the court one-half hour before the scheduled hearing. The surviving spouse took the position that no objection was filed (because it was late). The lower court agreed and admitted the 2007 will. Matthew appealed and won. [This does not mean that the earlier will is admitted, it just means fresh life was breathed into Matthew’s caveat and the lower court has to entertain his objection.]
In its analysis, the appellate court made much of the mandatory language of Fla.Stat. 731.110(3), which formerly statedthat “when a caveat has been filed 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 until the petition for administration has been served on the caveator or the caveator’s designated agent by formal notice and the caveator has had the opportunity to participate in the proceedings on the petition." [emphasis added]
This version of the statute was easily harmonized with Rule 5.260(f) which, as noted above, says the court “must not" admit a will without formal notice on the caveator.
On appeal, the surviving spouse addressed both prongs of Matthew’s due process argument, i.e. notice and opportunity to be heard. First, she argued that formal notice had been provided and Matthew had missed the deadline for filing his objection so the lower court did not need to consider it. Second, she argued that Matthew had received notice and been provided an opportunity to be heard and participate in the hearing on the Petition for Administration.
The appellate court disagreed, primarily because it reasoned that the “opportunity to participate" is a “statutorily-created due process right" requiring the caveator to be given a full and fair opportunity to be heard before his substantial interests are determined. The appellate court went on to say that in the context of a will contest, this includes the right to introduce evidence at a meaningful time and in a meaningful manner and includes the right to cross-examine witnesses and to be heard on questions of law. The hearing on the Amended Petition for Administration was not noticed as an evidentiary hearing (meaning no evidence could be offered), so the appellate court said Matthew was denied a meaningful opportunity to participate.
The appellate court was unconcerned by Matthew’s chronically-late filings, opining that Rule 5.040(a)(1) is “neither a statute of limitations nor a mandatory non-claim provision." It is simply a procedural rule and cannot act as a bar to a caveator’s procedural due process rights, which leads to the next issue.
Since the underlying proceedings in 2009, Florida Statute 731.110(3) has been amended by the legislature to read “if a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until the petition for administration has been served on the caveator or the caveator’s designated agent by formal notice and the caveator has had the opportunity to participate in the proceedings on the petition." [emphasis added] The distinction between “may" and “shall" in the law is not merely one of semantics. It would appear that the court now has the discretion to admit a will or appoint a personal representative even if the two prongs of notice and a hearing have not been satisfied.
So assume Sidney died this year and further assume all of the same facts as above - Matthew received formal notice, filed everything late, and was denied a meaningful opportunity to participate - does the new language mean that the lower court has the discretion to admit the will and/or appoint a personal representative even if one or both of the two prongs of the rule are not satisfied? Due process that is discretionary is meaningless and arguably not due process at all. So did the legislature make a mistake when it modified the language of the statute to change it from mandatory to discretionary or do the caveator’s rights currently not rise to the level of procedural due process?
While it is not clear what the implications of this opinion are given the small but significant difference between the language of Fla. Stat. 731.110(3) in 2009 and 2012, there are a couple of important lessons for practitioners to be gleaned from the opinion:
First, if you filed the petition for administration and a caveat has been filed, set the hearing on the petition as an evidentiary hearing to avoid the argument that the caveator was not given a meaningful opportunity to participate.
Second, if you are the caveator, file everything timely so that the judge is not inclined to rule against you out of a perception that your tardiness is a procedural bar and insist on an evidentiary hearing on the petition for administration and/or petition to admit will. While you may win on appeal, it’s far better to avoid the need for one.