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Will Contests: When, Where and How?

Written by on Jul 27, 2009| Posted in: Probate Litigation

Court Refuses to Throw Out Case Based on Technical Deficiency

Contesting a Last Will and Testament in Probate Court requires the skill and expertise of a lawyer who is familiar with both the substantive law governing probate litigation and also the procedural rules contained in the Florida Probate Rules and Rules of Civil Procedure. One of the areas about which a probate litigator must have knowledge is whether to and when it is necessary to serve papers by what is known as “formal notice.” The failure to accomplish this type of service can have significant implications on the substantive legal rights of litigants in probate court.

The issue of whether the failure to serve a will contest by formal notice within three months results in dismissal of the lawsuit was raised recently in the Second District Court of Appeals in Aguilar v. Aguilar 34 Fla.L.Weekly D1465 (Fla. 2nd DCA July 22, 2009). In Aguilar Beverly Aguilar, the wife of the decedent Mike Aguilar, Jr., (hereinafter “the Wife”) filed a will contest seeking to invalidate the will submitted to probate by the decedent’s daughters based on a theory of undue influence in the procurement of the last will and testament by two of the daughters and also asking for the removal of one of the daughters as personal representative of the estate.

Although the will contest was filed within three months of the admission of the will to probate, it was undisputedly not served by formal notice on the personal representative of the estate until many months later. The daughters sought to have the lawsuit dismissed based upon this failure to serve the will contest within three months after the admission to probate and the probate court agreed and dismissed the Wife’s claims.

The Second District Court of Appeals looked to the section of the Florida Probate Code governing the time within which a will contest must be filed:

Florida Statutes Section 733.212(3) provides:

Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred. (Emphasis added).

The Court reversed the probate court’s dismissal of the wife’s lawsuit because the Code only requires that the contest be filed within three months, its language does not require that it be served by formal notice within that time frame.

Also, the Court observed that the Wife’s motion was an adversary proceeding as defined in rule 5.025(a), and therefore she was required to serve formal notice pursuant to rule 5.025(d)(1). Rule 5.040 sets out the requirements for serving formal notice. It provides in subsection (a)(3)(A) that formal notice shall be served “by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt.” Rule 5.041(d) governs filing and provides that “[a]ll original papers shall be filed either before service or immediately thereafter.”

However, the Court also observed that none of these rules contain a time requirement for serving formal notice and therefore, they allowed the Wife to proceed with her undue influence claims.

This was a close call for the litigant in this case. Hats off to the Second District for not throwing a case out of court on a technical deficiency and allowing the matter to be decided on the merits.

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