Blogs from December, 2018


In the recently-decided Kellar v. Estate of John W. Kellar, 257 So.3d 1044 (Fla. 4th DCA 2018), the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim.

In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, the wife filed a petition seeking to admit the will favoring her, and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  The wife challenged her son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of his will favoring the wife and that upon the burden of proof shifting to the son, the son failed to establish by a preponderance of the evidence the nonexistence of undue influence.”  Id.  The effect of the court’s ruling, which was affirmed on appeal, is that the son’s will was invalid on the grounds of undue influence and the wife’s will was admitted to probate.

The court wrote the opinion, in part, to clarify and correct another issue.  The lower court made an alternate finding that Decedent’s prenuptial agreement precluded Decedent from revoking his will favoring the wife.  The appellate court reminds us that an individual always has a right to change his or her will.  Whether that change breaches a contract entered by the Decedent (for example, a prenuptial agreement) is a distinct issue.  The district court cited Lindeburg v. Lindeburg, 162 So.2d 1 (Fla. 3d DCA 1964) to remind the bench and bar that “in a contract to make a will, the promisor has the right to change his will…the right being enforced against the promisor is the contract right, and not the will, in the case of the breached contract to make a will…” (emphasis supplied).  The lower court’s alternative finding was a harmless error because the son’s will was properly invalidated for undue influence, so the judgment was not disturbed on appeal and the opinion was written to clarify a point of law.


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