In Florida, one of the pleading requirements for a Will Contest or Trust Contest is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document.
The “renunciation rule” is an equitable doctrine in Florida. Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013). It was originally established by the English ecclesiastical courts but has been interpreted by American courts to require that one who receives and retains a gift under a will is estopped to contest the validity. Id. In Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950), the Florida Supreme Court articulated three reasons for the renunciation rule:
(1) to protect a fiduciary in the event the contested document is held invalid;
(2) to demonstrate the sincerity of the contestant; and
(3) to have the property available for disposition at the conclusion of the contest.
Interestingly, the Fintak court effectively rejected the second prong when it held that “the risk that an individual initiated an insincere or vexatious claim is present in every action. Standing alone, this risk is an insufficient reason to require renunciation.” Fintak at 184. It is logical to require actual divestiture of any benefit received as a condition precedent to a Will or Trust contest if the contestant receives more under the challenged document than he does under a prior document. Consider the following hypothetical:
Decedent executes Will #1 leaving Beneficiary A $100,000 and Beneficiary B the residue. Subsequently, Decedent creates Will #2 leaving Beneficiary A $50,000 and Beneficiary B the residue. Assume that Decedent dies with $300,000 and the executor immediately distributes the specific gift of $50,000 to Beneficiary A, who then contests the validity of Will #2. What risk does the contest carry to the executor and what potential adverse impact would it have on Beneficiary B? The answer is none because regardless of whether Beneficiary A wins or loses, he is still entitled to at least the $50,000. Therefore, none of the equitable considerations and protections is necessary.
The Fintak court touched upon this very issue. The Fintak court refused to apply the renunciation rule to allow for the dismissal of a claim made by a beneficiary who had received benefits that he would have received regardless of the instruments he was attacking. The Fintak court relied upon the rationale of Mendary v. Dalman, 69 So. 2d 888 (Fla. 1954). In Mendary, the husband was a devisee of a one-fourth interest in certain property bequeathed to him under his deceased wife’s Will. When the will was admitted to probate, the husband filed suit in equity to have the trust declared in his favor as to the entire property because he supplied all the funds to purchase the property and the title was taken in his wife’s name for convenience only. He did not intend for the property to be a gift or advancement to the wife. The husband did not renounce the devise to him under his wife’s Will prior to filing suit and the action was dismissed. On appeal, the Florida Supreme Court held that the husband was not required to renounce the device to him of the one-fourth interest in the same property prior to filing suit because of the husband:
“Either owns the entire property, or title to one-fourth of it has vested in him by virtue of his wife’s will. This is a case where the donee would not receive under the will a benefit to which he would not be entitled except for the will, in which event no election is required. A renunciation in such a case would be more a form than a substance, for even if he lost in his suit to establish a resulting trust on the theory that the property is not part of the wife’s estate and consequently not subject to devise, he would still be entitled to take under the Will.” Fintak at 184 citing Mendary at 890.
Further, the Fintak court observed that the concept of estoppel based upon acceptance of benefits is “practically identical” to the renunciation rule. Fintak at 184. “Generally, the doctrine of estoppel holds “that a person should not be permitted to unfairly assert, assume or maintain inconsistent positions…However, as we held in the context of the renunciation rule, an individual cannot be estopped from challenging an instrument by accepting that which he or she is legally entitled to receive regardless of whether the instrument is sustained or overthrown.” Fintak at 184 (citing Head v. Lane, 495 So.2d 821 (Fla. 4th DCA 1986) and In re Will of Smith, 158 N.C. App. 722, 582 S.E. 2d 356 (N.C. Ct. App. 2003)).
In summary, “qualified renunciation of benefits” is a technical pleading requirement, but equity does not require the actual return of benefits received in every situation.