Gordon v. Kleinman

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Docket Number

No. 4D12–3080.

Attorney(S)

James A. Herb of Herb Law Firm, Chartered, Boca Raton, for appellant. Joseph E. Altschul of Joseph E. Altschul, LLC, Fort Lauderdale, for appellees.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

After the death of Joel Davis on August 7, 2011, his 2009 will was admitted into probate, with Laurie Kleinman appointed as personal representative. Marlene Gordon filed a Petition for Revocation of Probate of Will, alleging that Davis's 1983 will, in which she was the beneficiary, was his only valid will. The respondent moved to dismiss the petition on grounds of lack of standing and failure to allege undue influence. The trial court granted the motion to dismiss, but the petitioner appealed, contending she had standing because she alleged all wills executed after the 1983 will were invalid. The appellate court found the Second Amended Petition sufficient to survive dismissal and reversed and remanded the case for further proceedings.

Procedurally, the respondent initially filed a motion to dismiss, which was denied without prejudice. Upon renewal, the respondent attached Davis's last four wills (1992, 2003, 2008, and 2009), none naming the petitioner as beneficiary. The petitioner amended her petition to include the 1983 will. The trial court granted a subsequent motion to dismiss with leave to amend. The petitioner filed a Second Amended Petition alleging undue influence and testamentary incapacity invalidated the last four wills. The trial court again dismissed the petition for lack of standing and failure to state a cause of action, with leave to amend and a warning regarding Florida Statutes section 57.105. The petitioner did not amend further, and the petition was dismissed. The appellate court reviewed the dismissal de novo.

Legal Issues Presented

Whether the petitioner, Marlene Gordon, had standing as an interested person to petition for revocation of probate of the 2009 will.
Whether the petitioner sufficiently alleged facts to state a cause of action for revocation based on undue influence and testamentary incapacity affecting the wills executed after 1983.

Arguments of the Parties

Appellant's Arguments

The petitioner argued she had standing to seek revocation of the 2009 will because she alleged that all wills executed after the 1983 will were invalid.
She contended that the last four wills were invalid due to undue influence and testamentary incapacity, including lack of capacity and insane delusion.

Appellees' Arguments

The respondent argued that the petitioner lacked standing to contest the probate of the will.
The respondent asserted that the petitioner failed to allege sufficient facts supporting undue influence or other grounds to invalidate the later wills.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Agee v. Brown, 73 So.3d 882, 885 (Fla. 4th DCA 2011)	Standard of review for orders of dismissal based on lack of standing is de novo.	The court applied this standard to review the dismissal of the petition for lack of standing.
Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008)	In reviewing standing, courts must confine review to the complaint's four corners, accept all well-pled allegations as true, and draw all inferences in favor of the pleader.	The court accepted the petitioner's allegations as true and drew all reasonable inferences in her favor when considering standing.
Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005)	Support for the principle that well-pled allegations must be accepted as true at the motion to dismiss stage.	Supported the court’s approach to evaluating the petitioner's allegations on the motion to dismiss.
Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005)	Definition of "interested person" and the burden on a petitioner to establish standing by showing prior wills excluding the petitioner are invalid.	The court applied this principle to determine that the petitioner’s allegations that prior wills excluding her were invalid sufficed to establish standing.

Court's Reasoning and Analysis

The court reviewed the trial court's dismissal de novo, focusing on whether the petitioner had standing as an interested person under the Florida Probate Code and whether the petition stated a cause of action. The court examined the allegations in the Second Amended Petition, which claimed that the petitioner was a beneficiary under the 1983 will and that all subsequent wills excluding her were invalid due to undue influence and testamentary incapacity. Citing Florida statutes and case law, the court emphasized that a petitioner seeking revocation must plead both an interest in the estate and sufficient facts to support invalidity of later wills. The court found the petitioner's allegations sufficient to establish standing and to state a cause of action, concluding that dismissal was improper. Consequently, the court reversed the dismissal and remanded for further proceedings.

Holding and Implications

The court REVERSED AND REMANDED the trial court's dismissal of the Second Amended Petition for Revocation of Probate of Will.

This decision reinstates the petitioner's ability to proceed with her claim that the 2009 will is invalid and that the 1983 will is the controlling testamentary document. The court did not set new precedent but clarified the application of standing and pleading requirements in probate revocation proceedings under Florida law.

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Marlene GORDON, Appellant, v. Laurie KLEINMAN, indi

PER CURIAM.

James A. Herb of Herb Law Firm, Chartered, Boca Raton, for appellant. Joseph E. Altschul of Joseph E. Altschul, LLC, Fort Lauderdale, for appellees.
PER CURIAM.

After the death of Joel Davis on August 7, 2011, his 2009 will was admitted into probate with respondent/appellee, Laurie Kleinman, appointed as personal representative. Petitioner/appellant, Marlene Gordon, filed her Petition for Revocation of Probate of Will alleging that Davis's 1983 will (in which she was the beneficiary) was his only valid will. Respondent filed a motion to dismiss arguing that petitioner lacked standing to assert the claims and she failed to allege any facts supporting her claim of undue influence. Ultimately, the trial court granted respondent's motion to dismiss. Petitioner filed a timely notice of appeal, arguing that she has standing to petition for revocation of the 2009 will because she has alleged that all wills executed by Davis after the 1983 will were invalid. We agree petitioner's Second Amended Petition was sufficient to withstand a motion to dismiss and reverse and remand for further proceedings.

Respondent's initial motion to dismiss the Petition for Revocation of Probate of Will was denied without prejudice. Respondent renewed her motion to dismiss and attached Davis's last four wills from 1992, 2003, 2008, and 2009 in which petitioner was not named a beneficiary. Respondent raised the same grounds for dismissal. Without a ruling on the motion, petitioner amended her petition and attached the 1983 will in which she was a beneficiary. Respondent again moved to dismiss, which the trial court granted with leave to amend.

Petitioner filed her Second Amended Petition for Revocation of Probate of Will in which she alleged that, due to undue influence and testamentary incapacity based upon lack of capacity and insane delusion, the last four wills were invalid. Respondent again filed her motion to dismiss asserting that petitioner had not corrected the prior deficiencies. The trial court granted the motion, finding that petitioner lacked standing to contest probate of the will and that she failed to state a cause of action. The trial court gave petitioner leave to amend but admonished counsel to be cognizant of section 57.105, Florida Statutes. When petitioner did not amend her petition, the trial court dismissed the petition.

“We review orders of dismissal based on a lack of standing de novo.” Agee v. Brown, 73 So.3d 882, 885 (Fla. 4th DCA 2011). “In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008) (quoting Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005)).

The Florida Probate Code provides that a proceeding to revoke probate of a will may be commenced by “[a]ny interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123 ... before final discharge of the personal representative.” § 733.109(1), Fla. Stat. (2009). In section 731.201(23), Florida Statutes (2009), “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.”

“A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds on which the revocation is demanded.” Fla. Prob. R. 5.270. “Hence, whether a person is an ‘interested person’ is an element that must be established by the petitioner seeking revocation of probate....” Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005). “[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.” Id. (citations omitted). Thus “it is the burden of the petitioner seeking to revoke the present will to establish that the previous will, which also excludes the petitioner as a beneficiary, is invalid.” Id.

To withstand a motion to dismiss, the petition must be reviewed for sufficient allegations that the petitioner is an interested person and that previous wills which excluded the petitioner are invalid. In the second amended petition, petitioner alleged that she was the beneficiary of the 1983 will and that all of the prior wills under which she was not a beneficiary were the result of undue influence and/or testamentary incapacity and therefore invalid. Petitioner has pleaded sufficient allegations of standing and the trial court erred in dismissing her petition. Accordingly, we reverse the trial court's dismissal of the second amended petition and remand for further proceedings.

Reversed and remanded.

LEVINE, FORST, JJ., and KLINGENSMITH, MARK W., Associate Judge, concur.