Tuesday, October 20, 2015

Soriano v. Estate of Manes

Soriano v. Estate of Manes, 177 So.3d 677 (Fla. 3d DCA 2015), 2015 WL 5965203)

This decision centered around whether a potential civil claimant arising out of a pending criminal prosecution was a "reasonably ascertainable creditor" entitled to personal service of the notice to creditors.  The Court ultimately held that the claimant was not a reasonably ascertainable creditor, because the personal representative has no actual knowledge of the claimant's civil claim, nor would a more diligent search have revealed the existence of the claim.

Four months after the notice to creditors was published, the claimant filed her statement of claim alleging that she had a claim against the estate based upon an imminent private tort action against the decedent stemming from a criminal charge.  She argued that her statement of claim was timely filed because she was a reasonably ascertainable creditor, since she presented evidence showing that she was the victim of an alleged misdemeanor battery and that she had hired personal counsel who had contacted the decedent's criminal defense attorney and advised he was representing her.  

The Court noted that pursuant to F.S. 733.2121, a personal representative is required to promptly (1) publish the notice to creditors and (2) make a diligent search to determine the creditors of the decedent and serve a copy of the notice on those creditors.  However, F.S. 733.2121(3)(a) specifically provides that "impracticable and extended searches are not required."  Thus, the Court held that since the claimant could not show that the personal representative had actual knowledge of the civil claim or that a more diligent search would have revealed her claim, since she failed to place anyone on notice of her claim, she was not a reasonably ascertainable creditor entitled to notice and her claim was barred by F.S. 733.702(1).

Friday, October 16, 2015

Delbrouck v. Eberling

Delbrouck v. Eberling, 177 So.3d 66 (Fla. 4th DCA 2015), 2015 WL 5948724

In this case, one of the sons of the decedent claimed a constructive trust over certain properties titled in the name of the decedent.  The personal representative moved to compel the son to surrender to her the properties and to cease his business activities on the properties.  This decision dealt with whether the probate court was required to hear evidence before directing the son to turn over possession of the property to the personal representative.

The personal representative relied on F.S. 733.607(1), which states that "The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it."  The Court found that this statute does not mean a personal representative's right to possession of property cannot be contested in a probate proceeding, and found that the term "conclusive evidence" in the statute implies that an evidentiary hearing may be necessary when the right to possession of a decedent's property is genuinely disputed.  

Thus, the Court held that when property is titled in the name of a decedent, but other claims of colorable right to possess the same property exist, the question of who should temporarily possess the property is a factual question that should be resolved by an evidentiary hearing. The Court noted that the probate court has broad discretion to determine the responsibilities of the personal representative and the person claiming the right to possession with respect to maintaining and using the property, and that the probate court has the discretion to craft appropriate conditions, such as the right of the personal representative to inspect and photograph the property and its contents, the right of the personal representative to co-possess the property, the need to insure the property, etc. to deal with these situations.

Friday, October 2, 2015

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori, 182 So.3d 5 (Fla. 3d DCA 2015)

This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code.

The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and stamped the will.  The testator and the witnesses did not sign the will.  The beneficiaries of the Argentine will were completely different than those of the New York will.  

The Court considered whether the Argentine will could be admitted to probate under Florida law.  F.S. 732.502(1) requires that a will be signed by the testator and the witnesses.  But F.S. 732.502(2) relaxes the requirements for the wills of nonresidents, in that it recognizes as valid a foreign will of a nonresident if the nonresident's will is valid under the laws of the state or country where executed.  However, even if executed by a nonresident, Florida law does not recognize two types of wills: holographic wills and noncupative wills.  Unfortunately, the Probate Code fails to define "noncupative" wills.  Black's Law Dictionary defines a noncupative will as a "will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof."  The Court noted that the classic noncupative will is a deathbed declaration.  

The Court then acknowledge that the Probate Code recognizes a nonresidents' "notarial will" in F.S. 733.205 by providing that a copy may be admitted to probate if the original is required to be retained in the foreign country and if the original could have been admitted to probate in this state.  But again, the Probate Code fails to define "notarial" wills.  Generally, the Court noted, a notarial will is a will whose creation is supervised by a civil law notary who then permanently stores the will.  The generally accepted definition of a notarial will does seem to include the signature of the testator, notary and witnesses.  

Ultimately, the Court held that the Argentine will was a notarial will, but was a type of notarial will that is noncupative because it was not signed by the testator. Thus, the unsigned Argentine will could not be admitted to probate in Florida.  

The Court invited the legislature to revisit the Florida Probate Code to include definitions of "notarial," "noncupative," "holographic," and "nonresident."