Carman v. Gilbert
| Decision Date | 30 June 1994 |
| Docket Number | No. 81209,81209 |
| Citation | 641 So.2d 1323 |
| Parties | 19 Fla. L. Weekly S349 Theresa H. CARMAN, Petitioner, v. Roy GILBERT, et al., Respondents. |
| Court | Florida Supreme Court |
Richard C. Langford, St. Petersburg, for petitioner.
George M. Osborne, St. Petersburg, for respondents.
We have for review the opinion in Carman v. Gilbert, 615 So.2d 701 (Fla. 2d DCA 1992), which certified conflict with the opinion in In re Estate of Stein, 301 So.2d 120 (Fla. 3d DCA 1974). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. We quash the decision below because a renunciation of benefits which is included in a petition to revoke probate of a will should be interpreted as a qualified renunciation.
This case involves a will contest in which Theresa H. Carman (Carman) filed a petition for revocation of probate of her brother's will. Under the terms of the will, Carman received one-half of her brother's interest in their father's former residence. The will also included a number of specific bequests to other beneficiaries who were not related to the brother, with the balance of the estate being devised to four of those individuals. Carman asserted that her brother lacked testamentary capacity at the time the will was executed and that several of the beneficiaries exerted undue influence on her brother. Carman's petition for revocation of probate contained the following language of renunciation:
6. Petitioner, Theresa H. Carman, disclaims any and all interest which she may have under the last will and testament of Charles K. Carman, Jr. dated December 21, 1990. 1
After Carman voluntarily dismissed the revocation proceeding, the Respondents filed a "Petition for Determination of Renunciation," asserting that Carman had forfeited her rights in the estate by reason of the renunciation in her petition. The trial court determined that the "renunciation was unconditional in its terms and intent, and upon facts herein cannot be withdrawn." The court ordered Carman take nothing by the will and that her share of the estate be divided among the residual beneficiaries.
On appeal, the Second District Court of Appeal affirmed the order for renunciation of benefits, finding that Carman "must be bound by her chosen words of 'absolute' renunciation." 615 So.2d at 704. However, the district court certified its decision to be in direct conflict with Stein. Id.
It is "well settled that a beneficiary under a will who desires to contest that will must first divest himself of any beneficial interest which he has under the will." Pournelle v. Baxter, 151 Fla. 32, 36, 9 So.2d 162, 163 (1942). This Court explained that the purpose of such renunciation is three-fold: 1) to protect the executor in the event the will 2 is held invalid; 2) to demonstrate the sincerity of the contestant and prove that the suit is not merely vexatious; and 3) to have the property readily available for disposition under a decree of court. Barnett National Bank v. Murrey, 49 So.2d 535, 537 (Fla.1950). Although renunciation of any beneficial interest is a condition to contesting the will, "the beneficiary does not thereby forfeit all right or interest regardless of the outcome of the litigation." Id. If the contest is unsuccessful, the contesting party may still take under the instrument. Id. at 538. Thus, the effect of the renunciation is "qualified," rather than "absolute."
Based upon Barnett National Bank, the Second District Court of Appeal previously held that a will contestant need only assert a "qualified" renunciation in a petition for revocation of probate. In re Estate of Harby, 269 So.2d 433 (Fla. 2d DCA 1972). In the instant case, the district court cited Harby and a sample form promulgated by The Florida Bar to support its conclusion that Carman "must be bound by her chosen words of 'absolute' renunciation." 615 So.2d at 704. Thus, the district court looked to the words of renunciation rather than the purpose behind the renunciation.
In contrast, the Third District Court of Appeal reached the opposite conclusion when faced with an almost identical disclaimer in a petition for revocation of probate. 3 Stein, 301 So.2d 120. In Stein, the district court reversed an order precluding will contestants from taking anything under the will because their disclaimer was couched in absolute language. The district court concluded that a renunciation need not contain "certain magic words" in order to be qualified in its effect. Id. at 122. Instead, the court discerned the qualified nature of the renunciation by reading the petition to revoke probate and the amendment to the petition. The district court further determined that the sole purpose for including the renunciation was to comply with the requirement that a beneficiary must renounce benefits under the will in order to file a petition to revoke probate. Id. Thus, the Third District Court of Appeal looked to the purpose behind the renunciation rather than to the literal words of renunciation.
We agree with the reasoning of the district court in Stein. As this Court explained in Barnett National Bank, a beneficiary must renounce benefits under a will or trust agreement in order to contest the validity of the instrument. 49 So.2d at 537. However, "[b]y renouncing [the] right to the property as a condition to contesting the instrument the beneficiary does not thereby forfeit all right or interest regardless of the outcome of the litigation." Id. Because the pleading of renunciation is a necessary requirement to the filing of a petition to revoke probate of a will, we hold that such a renunciation will be interpreted as qualified in effect. This interpretation permits an unsuccessful contestant to take under the will as the testator intended. At the same time, it encourages beneficiaries to come forward with bona fide claims as to the validity of an instrument that could thwart the testator's true intent.
However, we caution that the attacker of a will should not be permitted to "have the cake and eat it, too." In Barnett National Bank, this Court stated that a beneficiary must "do equity" by renouncing the right to property under an...
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