In Eisenpresser v. Koenig, 2018 Fla. App. LEXIS 2262 (Fla. 4th DCA 2018), the Court addressed whether factual findings of the trial court are supported by competent substantial evidence to support reformation of a will. Section 732.615 Fla. Stat., states “upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.” In Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999), the Court determined the role of the attorney in closing argument “is not for the purpose of permitting counsel to ‘testify’ as an ‘expert witness’.”
Here, Jane Eisenpresser, the Appellant, testified that the decedent, Harriet Numeroff, stated if an heir purchased an item for the decedent, the heir would receive that item upon her death. Both parties agreed that the decedent also made individual bequeaths of certain personal property to different heirs. During closing argument, Appellees’ counsel stated that the Appellee, Nancy Koenig, also an heir of the decedent and the personal representative, had originally purchased and gifted this jewelry item to decedent. Appellee offered no proof to support the claim that she purchased jewelry item 157 or that the decedent intended the item for Appellee other than the closing argument statement. Contrary to that statement, jewelry item 157 was clearly identified in the statement of personal property attached to decedent’s will as to be gifted to Appellant.
The Fourth District Court of Appeals noted that Appellee must show there was some kind of mistake of fact in the will by clear and convincing evidence. The Court found that Appellee had offered no evidence of a mistake, let alone clear and convincing evidence. The only statement made about the gift was in closing arguments, which is not evidence. The Fourth District Court of Appeals held that the personal representative’s attorney’s closing argument statement did not constitute evidence that would support reformation of will to grant that piece of jewelry to personal representative.
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