Blogs from March, 2010


Questions regarding Florida Inheritance Law and Florida Inheritance Lawsuits.

When Olga Kuhnreich died, she was unmarried and had no children.  She was survived by her niece, Conchita, and Sister Gladys.  Olga’s will named Conchita as the Personal Representative.  Conchita read the last will and testament after Olga’s death and was confused as to who was to inherit Olga’s home.  The confusion was Article Three of the Will, titled “Specific Bequests of Real and/or Personal Property,” concerned two parcels of real estate. First, a West Palm Beach condominium unit was gifted outright to two named beneficiaries. Second, “[f]rom the sale of 202 N.W. 18 Street[,] Delray Beach, Florida 33444,” the will gifted specific dollar amounts to five persons: Robert Kuhnreich, $5,000; “Lane Abbot, AKA Orlando Abad,” $10,000; “David Mears, AKA David Abad,” $10,000; “Connie Abad, AKA Conchita Abad,” $30,000; and Maria De Cuena, $5,000.  Article Three ended with this sentence:

“In the event that I do not possess or own any property listed above on the date of my death, the bequest of that property shall lapse.”

Article Four was titled “Homestead or Primary Residence.” It stated:

I will devise and bequeath all my interest in my homestead or primary residence, if I own a homestead or primary residence on the date of my death that passes through this Will, to see above primary residence. If I name more than one person, they are to receive the property [X] equally, after all, estate taxes, debts are satisfied.

Name Address Relationship

Gladys Pajares 1150 N.E. 155 Street, N. Miami Beach Fla Sister

Conchita Donahue 44 Pine Oak Drive, Littleton, Colorado Niece

Property: Primary Resident[sic] 202 N.W. 18 Street Delray Beach, Florida 33444

What Happens When there is a Dispute Concerning How A Will Should be Interpreted?

In Florida, where there is a question as to how a last will and testament should be constructed or interpreted, the law is well settled that, the polestar to will interpretation is the intent of the testator. The laws regarding last will and testaments are calculated to avoid speculation as to the testator’s intent and to concentrate on what he said rather than what he might or should have said. Thus, the intention which controls in the construction of a will is that which is manifest, either expressly or by necessary implication, from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used; or, as is sometimes said, the testator’s intention must be ascertained from the four corners of the will. Hence a will cannot be construed by a mere conjecture as to the intention of the testator, but it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind. One court has stated that it is the intention which the testator expresses in his will that controls. Once the intent of the testator is ascertained, the entire will should be considered and construed liberally to effectuate the testator’s intent.

Because Conchita was uncertain what the language of the last will and testament meant, she asked the probate court to interpret the will and ascertain Olga’s intent.  Conchita took the view that Olga’s Delray Beach house was homestead property not subject to administration, and that it passed to Conchita and Gladys by operation of law, which would have the effect of nullifying the specific devises in Article 3.  The treatment of the property as a homestead would have the practical advantage of allowing the real property to pass outside of probate and beyond the reach of Olga’s creditors.

The Court found that Olga’s Delray Beach house, which was her homestead or primary residence, be sold by the Personal Representative of her estate, that the proceeds be used to make the specific bequests set forth in Article Three, and that the remaining proceeds after payment of all estate taxes and debts go in equal amounts to the devisees set forth in Article Four.  The court directed Conchita to sell the Delray Beach property for $300,000.

Gladys disagreed; she argued that the will should have been strictly construed in favor of retaining the homestead exemption contained in Article X, Section 4 of the Florida Constitution. However, the court of appeals in Pajares v. Donahue, –So.3d–, 2010 WL 934101 (Fla.4th DCA March 17, 2010) ruled that where the decedent has no surviving spouse or minor children, homestead property may “pass as a general asset of the estate by a specific devise.”

The court stated that “[W]hen the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided[,] . . . the homestead loses its ‘protected’ status.” “Thus, where the will directs that the homestead be sold and the proceeds added to the estate, those proceeds are applied to satisfy the specific, general, and residual devises, in that order.”

The court read Articles Three and Four together, and determined that Olga specified that the Delray Beach property was to be sold and the proceeds divided according to the provisions of the will:

“With the italicized and underlined language, “see above primary residence,” Article Four specifically references the treatment of the residence in Article Three. Article Three indicates that the specific bequests will be paid from “the sale” of the Delray Beach home. In fact, the will provides for the Article Three bequests only through a sale of the real property: the will provides that if the decedent did not own one of the two properties on the date of her death, then “the bequest of that property shall lapse.” Article Four does not expressly say that the Delray Beach Property is to pass to Pajares and Donahue free of claims of the decedent’s creditors, a hallmark of the homestead property. See In re Estate of Hamel, 821 So. 2d 1276, 1278 (Fla. 2d DCA 2002). Rather the devise is subject to “debts.” The will does not, therefore, demonstrate an intent to preserve the advantages of a homestead for the property.

For these reasons, the court affirmed the probate court’s ruling that the property should be sold to satisfy the specific bequests in Article Three, and that the remaining proceeds after payment of estate expenses be distributed in equal amounts to the devisees in Article Four.

This case serves as another example of the problems faced by litigants in probate court when questions arise in the context of Florida inheritance lawyers and Florida inheritance lawsuits.


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