Should Trial Courts Prevent a Petitioner from Challenging a Will Because of a Technical Defect?

Posted on March 23, 2018

In Winslow v. Deck, 225 So. 3d 276 (Fla. 4th DCA 2017), the Court addressed whether the Appellant’s emergency petition satisfied the statutory requirements set forth in Section 733.212(3), Fla. Stat., and was within the applicable statute of limitations. Pursuant to Section 733.212(3), Fla. Stat., interested parties are barred from requesting the court to revoke the probate of a will if they fail to object to the validity of the will within three months of receiving notice. Fla. Prob. R. 5.020(a) states “[a]ll technical forms of pleadings are abolished. No defect of form impairs substantial rights, and no defect in the statement of jurisdictional facts actually existing renders any proceeding void.” Further, after an interested person petitions the court to probate a later will or requests to revoke an earlier will, the proceedings are declared adversarial and the Florida Rules of Civil Procedure govern the proceedings. See Fla. Prob. R. 5.025(d)(2).

Here, the Appellee and daughter of the decedent, Mallory Deck, successfully petitioned the court to admit the first of two wills to probate and to appoint her as the personal representative of the estate. Twenty days after the Appellee petitioned the court, the Appellant, Karen Winslow, filed the second will. The decedent drafted two wills that are at issue in this case. The first will was drafted in January 1991, which left his entire estate to his two adult children. Several years later, the decedent befriended Appellant and they began living together. Thereafter, the decedent drafted a second will in November 2014 that contained language that revoked all prior wills and left his entire estate to Appellant. Two days after the Appellant filed the second will, she also filed an emergency petition to revoke letters of administration, a counter petition for administration with the second will attached thereto, an objection to Appellee’s petition and an objection to her appointment as personal representative, and a declaration that the probate proceeding was adversary. Less than one month later, the court denied the Appellant’s emergency petition. One year later, the Appellee moved to dismiss the Appellant’s counter petition. The Appellee alleged that although the Appellant immediately filed an emergency petition and counter petition, the Appellant failed to file any pleading that specifically requested the first will be revoked. The Appellant responded by arguing that the court should deny the motion to dismiss, or alternatively, grant the motion but with leave to amend the counter petition. The court entered a final order dismissing the counter petition with prejudice, ruling that neither the emergency petition nor the counter petition satisfied the statutory requirements of Section 733.212(3), Fla. Stat., for failure to adequately request relief. The Appellant filed an appeal of that decision.

The Fourth District Court of Appeals looked at Pasquale v. Loving, 82 So. 3d 1205, 1207 (Fla. 4th DCA 2012), which stated as a general rule, trial courts should not prevent a petitioner from challenging a will because of a technical defect in the petitioner’s pleading without allowing for a reasonable opportunity to amend. Fla. R. of Civ. Pro. 1.190(a), which governs amendments to pleadings, “reflect[s] a clear policy that, absent exceptional circumstances, requests for leave to amend pleadings should be granted.” Thompson v. Jared Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004). “A trial court’s refusal to allow amendment . . . generally constitutes an abuse of discretion ‘unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.'” PNC Bank, N.A. v. Progressive Employer Services II, et al., 55 So. 3d 655, 660 (Fla. 4th DCA 2011) (quoting Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007).

The Fourth District Court of Appeal determined the emergency petition and the counter petition were not very clear, but they were sufficient to withstand a motion to dismiss. In the emergency petition, the Appellant asserted the first will was not the last will of the decedent, she filed a counter petition to admit the second will to probate, and issuing letters of administration for the first will was improper because the second will revoked all prior wills. In the counter petition, the Appellant attached the second will, claimed it was properly executed, and requested an independent personal representative be appointed. It is clear from the allegations in the counter petition and emergency petition that the Appellant sought to revoke the probate of the first will and admit the second will. The Appellant satisfied both Sections 733.208 and 733.212(3), Fla. Stat., even though she technically failed to properly request relief. See Fla. Prob. R. 5.020(a). The Fourth District Court of Appeal further stated the trial court, by finding that appellant’s pleadings were insufficient under Section 733.212(3), Fla. Stat., should have granted the motion to dismiss but with leave to amend the counter petition to incorporate a proper request for relief. The Court reversed the trial court’s dismissal of Appellant’s counter petition, and remand with instructions for the court to grant Appellant’s request for leave to amend her counter petition to incorporate a proper request for relief.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate, and/or Trust Disputes, or questions pertaining to such proceedings, please contact the Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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