Agee v. Brown

• Court: Florida District Court of Appeals
• Writing for the Court: CIKLIN
• Citation: Agee v. Brown, 73 So.3d 882 (Fla. App. 2011)
• Decision Date: 16 November 2011
• Docket Number: No. 4D10–3894.,4D10–3894.
• Parties: Jon AGEE and Susan Agee, Appellants, v. Roger L. BROWN, as Personal Representative of the Estate of Herbert G. Birck and as the Trustee of the Herbert G. Birck Revocable Trust, Appellee.

73 So.3d 882

Jon AGEE and Susan Agee, Appellants,

v.Roger L. BROWN, as Personal Representative of the Estate of Herbert G. Birck and as the Trustee of the Herbert G. Birck Revocable Trust, Appellee.

No. 4D10–3894.

District Court of Appeal of Florida, Fourth District.

Nov. 16, 2011.

Joseph DeGance, Fort Lauderdale, for appellants.

Peter J. Forman and Sean M. Lebowitz of Gutter Chaves Josepher Rubin Forman Fleisher P.A., Boca Raton, for appellee.

CIKLIN, J.

Jon and Susan Agee appeal the trial court's order dismissing their petition to revoke probate of the last will of Herbert G. Birck based on a lack of standing. The trial court had found that the prior will upon which the Agees based their standing was void as contrary to public policy because Mr. Agee, in violation of the Rules Regulating The Florida Bar, had drafted that earlier will in which he and his wife were left a substantial bequest. The Florida Probate Code, however, does not provide for such an automatic exclusion. Because we conclude that the Agees have standing under a prior will to petition for the revocation of the decedent's last will, we reverse and remand for further proceedings.

The decedent, Herbert G. Birck, died on October 25, 2009. On November 17, 2009, Roger L. Brown filed a petition for administration of the decedent's testate estate. Brown sought to have the decedent's last will and testament, which was executed on February 11, 2009 (the “2009 will”), admitted to probate and to have himself appointed as personal representative of the estate in accord with the 2009 will. The trial court granted Brown's petition.

In April 2010, Jon and Susan Agee filed a verified petition to revoke the probate of the 2009 will. The Agees named Brown in both his capacity as personal representative and as trustee of the decedent's living trust as the respondent. In their petition, the Agees alleged a claim of undue influence by one or more of the beneficiaries in the procurement of the decedent's 2009 will and the living trust referenced in that will, and a claim that the testator lacked testamentary capacity at the time those instruments were executed.

As the basis for their standing, the Agees alleged that they were the beneficiaries under a line of testamentary instruments beginning in 1998 and culminating with a will executed in 2007 (the “2007 will”). The Agees further alleged that they had been close friends with the decedent for approximately sixteen years.

Brown, as personal representative of the estate, filed a motion to dismiss the Agees' petition. In this motion to dismiss, Brown asserted, among other grounds, that the Agees lacked standing to contest the 2009 will and trust, because the 2007 will, which the Agees claimed gave them standing as a beneficiary, was void as a result of it having been drafted by Mr. Agee who was the decedent's attorney at the time. Brown essentially argued that because it is a violation of the Rules Regulating The Florida Bar for an attorney who is not related to a client to prepare a will on the client's behalf that includes a bequest for the attorney, the bequest to the Agees from the 2007 will was void as contrary to public policy, and therefore, the Agees had no interest in the decedent's estate.

In support of the motion to dismiss, Brown attached several documents including a copy of the 2007 will and an affidavit of Jon Agee, which had been recorded in the official records of Broward County on February 19, 2010. In this affidavit, Mr. Agee admitted to having represented the decedent and his wife in various matters, including estate planning. Although the affidavit itself does not directly state that Mr. Agee drafted the 2007 will, the Agees do not contest that allegation in this appeal.

Following a hearing, the trial court granted the motion to dismiss with prejudice and entered a final order stating:

The Court finds that the [Agees] were not related to Herbert G. Birck and since Jon Agee was the attorney who acted as the scrivener of earlier will, trust and deed in which he and his wife, Susan Agee, were left a bequest of property, the bequest to [the Agees] as contestants was void as contrary to public policy of the State of Florida and Rules Regulating [The] Florida Bar. [The Agees] do not have standing to contest the later will, trust and deed in which [they] were left nothing.

The trial court's final order also contained the following paragraph:

The affidavit of Jon Agee CFM# 109162607 or BK 46889, Pages 713–716 recorded 02/19/10 Broward County Commission Deputy Clerk 2015 is hereby stricken from the public records and declared null and void.

The Agees filed a timely notice of appeal and this appeal follows. The Agees argue that the trial court erred in its interpretation of the Florida Probate Code and added language to the statutes that was not placed there by the legislature. We agree.

We review orders of dismissal based on a lack of standing de novo. See FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010); Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008).

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

Importantly, neither of these statutes has any exceptions that would prohibit an attorney who drafts a will which includes a bequest to the drafting attorney from being an “interested person” in a petition to revoke the probate of a later will. To reach the conclusion that the Agees lacked standing, the trial court incorporated Rule 4–1.8(c) of the Rules Regulating The Florida Bar ¹ into the statutory framework of the probate code. This interpretation of the probate code, however, was erroneous as “[i]t is a well-established tenet of statutory construction that courts are not at liberty to add words to the statute that were not placed there by the Legislature.” Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 512 (Fla.2008) (citation and internal quotation marks omitted); see also Boulis v. Blackburn, 16 So.3d 186, 189 (Fla. 4th DCA 2009) (rejecting an appellant's interpretation of section 732.15 because the appellant's “interpretation adds an exclusion to this statute that the statute does not provide”).

In support of his position that a bequest to a drafting attorney must be deemed void as contrary to public policy, Brown argues that “[p]ublic policy demands protection of the public and the instilling of confidence in the legal profession.” The best way to protect the public from unethical attorneys in the drafting of wills, however, is entirely within the province of the Florida Legislature. The current statutory framework, contrary to Brown's implication, does contain some protections. See, e.g., § 732.5165, Fla. Stat. (2009) (“A will is void if the execution is procured by fraud, duress, mistake, or undue influence.”); § 733.107(2), Fla. Stat. (2009) (“The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden...