As we’ve previously written about on this blog, while one of the pleading requirements for a Will Contest or Trust Contest in Florida is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document, “qualified renunciation of benefits” is a technical pleading requirement, and equity does not require the actual return of benefits received in every situation. See, Qualified Renunciation)
Last July we blogged about Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013), a case in which the 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 rationale behind the Fintak decision was that the contestant did not receive under the challenged document “a benefit to which he would not be entitled except for the” challenged document, so no election was required.” Id. at 184 (citing Medary v. Dalman, 69 So.2d 888, 890 (Fla.1954)).
A recent opinion issued by the Fourth District Court of Appeal highlights another example of a situation where a party who has received a benefit under estate planning documents but also wishes to challenge certain aspects of the same estate planning documents as being the result of undue influence, fraud, duress, or some other defect, should not be required to return the benefits received in order to do so. In Fiel v. Hoffman, — So.3d — (Fla. 4th DCA 2015), 2015 WL 4549604, which issued on July 29, 2015, the Court reminded us that under section 732.5165, Fla. Stat., while “[a]ny part of the will is void if so procured [by fraud, duress, mistake, or undue influence],  the remainder of the will not so be procured shall be valid if it is not invalid for other reasons….” Id. at *5. While this case had nothing to do with qualified renunciation, it highlighted the fact that courts may determine “[w]hether the alleged undue influence . . . is pervasive enough to permeate the entire will,” or whether only part of the will is void. Id. at *6 (citing Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002 (Fla. 5th DCA 2005)). In certain instances, a contestant may challenge only certain provisions of a will and, even if successful, “the remainder of the will not so be procured shall be valid if it is not invalid for other reasons.” § 732.5165, Fla. Stat. (2015). Based on this rationale, if a contestant receives a devise under a portion of a will that he or she is not contesting, and is instead only challenging a certain provision of the will, the same rationale that the court relied upon in Fintak should apply.
To highlight this distinction, consider the following testamentary dispositions as effectuated by two separate estate-planning documents, purportedly executed pursuant to Decedent’s wishes:
Will 1 (2008):
Clause I- Specific Gifts
Clause II- Residuary Estate
Mike…………………. The residue of the Estate
Will 2 (2010):
Clause I- Specific Gifts
Clause II- Residuary Estate
Caretaker………………Residue of the Estate
Between 2008 and 2010, Decedent hires Caretaker. In 2010, the newly hired Caretaker drives Decedent to her longtime estate-planning attorney, Shady Lawyer, with a copy of Decedent’s 2008 will. Caretaker crosses out the name “Mike” under “Clause II- Residuary Clause” and replaces it with “Caretaker.” Caretaker, purportedly on behalf of Decedents, gives Shady Lawyer the copy of Decedent’s 2008 will that contains Caretaker handwritten notes, which Shady Lawyer then uses to draft Decedent’s Will 2. When Decedent dies, Caretaker petitions to have Decedent’s 2010 Will 2 admitted to probate. Mike, while having been cut out of Clause II, receives $100,000.00 but still wishes to contest the change that Caretaker procured by undue influence, fraud, and duress over the Decedent. Mike does not believe that the entire 2010 Will 2 was the result of Caretaker's bad acts; rather, he only wishes to contest the part of Will 2 that Caretaker had Shady Lawyer change. What the recent Fiel case reminds us is that under section 732.5165, Fla. Stat., Mike can challenge, and the Court can rule on, whether “part of the will is void if so procured [by fraud, duress, mistake, or undue influence],” rather than contesting 2010 will entirely. Even if the Court determines that the change to Clause II was void, “the remainder of the will not so be procured shall be valid if it is not invalid for other reasons.” § 732.5165, Fla. Stat. (2015).
Barnett Nat. Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950), the seminal Florida case addressing qualified renunciation, stands for the proposition that a party “is and should be estopped from asserting the invalidity of [an estate planning document] until he has first filed his formal disclaimer and renouncement of any beneficial interest thereunder.” But in the above example, Mike is not challenging Will in its entirety; rather Mike is merely challenging one provision of the Will, a portion that, as of the time he brings his challenge, Mike received no benefit under. Just as in Fintak, where the contestant did not receive under the challenged document “a benefit to which he would not be entitled except for the” challenged document,” in the example above Mike did not receive a benefit under the challenged provision of Will 2 Fintak, 120 So.3d at 184 (citing Medary v. Dalman, 69 So.2d 888, 890 (Fla.1954)). Thus, Mike should not be required to make a qualified renunciation of the $100,000.00 he received in order to contest the change to Clause II of Will 2. Mike simply chose to contest only a portion of Decedent’s 2010 Will 2, which section 732.5165, Fla. Stat., permits him to do, so no qualification should be required of him in order to bring suit. Id.
While it is clear from the foregoing that a qualified renunciation should not be required in every case where a beneficiary is contesting an estate planning document under which she or she has already received a benefit, it is still advisable, in an abundance of caution, to make a qualified renunciation and either return the benefits received or tender them to the Court until the Court has ruled on the validity of the challenged provisions.