Blogs from August, 2009


Questions often arise concerning whether and to what extent the Rules of Civil Procedure govern probate proceedings. Generally, the Florida Probate Rules provide that certain proceedings, such as to remove a personal representative, to determine beneficiaries, and to partition property for the purposes of distribution, constitute adversary proceedings.  In addition, the court can determine any proceeding to be adversary on its own, or by the motion of a party.

Once a proceeding is determined to be an adversary in the probate court, the Florida Probate Rules specify that the proceedings, as nearly as practicable, are to be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure are to govern. Fla.Prob.R. 5.025(d).

The importance of the application of the Rules of Civil Procedure in a probate proceeding was evident in an opinion released by the Third District Court of Appeals, in Padron v. Alonso, in re the Estate of Maria Alonso, 32 Fla.L.Weekly D2648b. This case involved a petition for the revocation of probate, more commonly known as a will contest.

Evidently, when some time passed without any court activity by the person contesting the will, the estate representative asked the court to dismiss the action for failure to prosecute under Rule of Civil Procedure 1.420(e):

Failure to Prosecute.

In all actions in which it appears on the face of the record that no activity (e.g., filing of pleadings or order of the court) has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

The probate court in Miami dismissed the will contest because it felt that too much time had passed during which the person bringing the will contest had failed to prosecute the case. However, the court of appeals disagreed, because the record, in this case, revealed at least one filing within sixty days of the notice of intent to dismiss for lack of prosecution, therefore, the action should not have been dismissed.


Most Recent Posts from August, 2009