Azcunce v. Estate of Azcunce

• Decision Date: 17 September 1991
• Docket Number: No. 89-2234,89-2234
• Citation: 586 So.2d 1216
• Parties: 16 Fla. L. Weekly D2451 Patricia AZCUNCE, as a beneficiary of the Estate of Rene R. Azcunce, Deceased, Appellant, v. ESTATE OF Rene R. AZCUNCE, Deceased, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1216

586 So.2d 1216

16 Fla. L. Weekly D2451

Patricia AZCUNCE, as a beneficiary of the Estate of Rene R Azcunce, Deceased, Appellant, v.ESTATE OF Rene R. AZCUNCE, Deceased, et al., Appellees.

No. 89-2234.

District Court of Appeal of Florida Third District.

Sept. 17, 1991.

Judith A. Frankel, Miami Beach, for appellant.

Murai, Wald, Biondo & Moreno and Marianne A. Vos, Miami, for appellees.

Before HUBBART, LEVY and GERSTEN, JJ.

HUBBART, Judge.

The central issue presented by this appeal is whether a child who is born after the execution of her father's will but before the execution of a codicil to the said will is entitled to take a statutory share of her father's estate under Florida's pretermitted child statute--when the will and codicils fail to provide for such child and all the other statutory requirements for pretermitted-child status are otherwise satisfied.We hold that where inter alia the subject codicil expressly republishes the original will, as here, the testator's child who is living at the time the codicil is executed is not a pretermitted child within the meaning of the statute.We, accordingly, affirm the final order under review which denies the child herein a statutory share of her father's estate as a pretermitted child.

I

The facts of this case are entirely undisputed.On May 4, 1983, the testator Rene R. Azcunce executed a will which established a trust for the benefit of his surviving spouse and his then-born children: Lisette, Natalie, and Gabriel; the will contained no provision for after-born children.On August 8, 1983, and June 25, 1986, the testator executed two codicils which did not alter in any way this testamentary disposition and also made no provision for after-born children.

On March 14, 1984, the testator's daughter Patricia Azcunce was born--after the first codicil was executed, but before the second codicil was executed.The first codicil expressly republished all the terms of the original will; the second codicil expressly republished all the terms of the original will and first codicil.

On December 30, 1986, the testator, who was thirty-eight (38) years old, unexpectedly died of a heart attack--four months after executing the second codicil.After the will and codicils were admitted to probate, Patricia filed a petition seeking a statutory share of her father's estate as a pretermitted child; the trial court denied this petition.Patricia appeals.

II

The statute on which Patricia relies for a share of her father's estate provides:

"When a testator omits to provide in his will for any of his children born or adopted after making the will and the child has not received a part of the testator's property equivalent to a child's part by way of advancement, the child shall receive a share of the estate equal in value to that he would have received if the testator had died intestate, unless:

(1) It appears from the will that the omission was intentional; or

(2) The testator had one or more children when the will was executed and devised substantially all his estate to the other parent of the pretermitted child.

The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with Sec. 733.805."

Section 732.302, Florida Statutes(1985)(emphasis added).Without dispute, Patricia was a pretermitted child both at the time the testator's will and the first codicil thereto were executed, as, in each instance, the testator "omit[ted] to provide in his will [or codicil] for [Patricia who was] born ... after ... the will [or codicil was executed]"; moreover, Patricia at no time received a part of the testator's property by way of advancement, the will and first codicil do not expressly disinherit Patricia, and the testator did not substantially devise all of his estate to Patricia's mother.The question in this case is whether the testator's execution of the second codicil to the will after Patricia had been born destroyed her prior statutory status as a pretermitted child.

It is well settled in Florida that, as a general rule, the execution of a codicil to a will has the effect of republishing the prior will as of the date of the codicil.Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603(1947);In re Campbell's Estate, 288 So.2d 528(Fla. 3d DCA), cert. denied, 300 So.2d 266(Fla.1974).Although this is not an inflexible rule and must at times give way to a contrary intent of the testator, Waterbury;Massachusetts Audubon Soc'y, Inc. v. Ormond Village Improvement Ass'n, 152 Fla. 1, 10 So.2d 494(1942), it always applies where, as here, the codicil expressly adopts the terms of the prior will; this is so for the obvious reason that such a result comports with the express intent of the testator.SeeT. Atkinson, Law of Willsch. 10 Sec. 91 (2d ed. 1953);2 W. Bowe & D. Parker, Page on WillsSec. 23.18(1960);Evans, Testamentary Republication, 40 Harv.L.Rev. 71, 100-04(1926).

III

Turning to the instant case, it is clear that the testator's second codicil republished the original will and first codicil because the second codicil expressly so states.This being so, Patricia's prior status as a pretermitted child was destroyed inasmuch as Patricia was alive when the second codicil was executed and was not, as required by Florida's pretermitted child statute, born after such codicil was made.Presumably, if the testator had wished to provide for Patricia, he would have done so in the second codicil as she had been born by that time; because he did not, Patricia was, in effect, disinherited which the testator clearly had the power to do.Flagler v. Flagler, 94 So.2d 592(Fla.1957);Hooper v. Stokes, 107 Fla. 607, 145 So. 855(1933).Indeed, the result we reach herein is in full accord with the results reached by courts throughout the country based on identical circumstances.Young v. Williams, 253 N.C. 281, 116 S.E.2d 778(1960);Laborde v. First State Bank & Trust Co., 101 S.W.2d 389(Tex.Civ.App.1936);Gooch v. Gooch134 Va. 21, 113 S.E. 873(1922);Francis v. Marsh, 54 W.Va. 545, 46 S.E. 573(1904).

To avoid this inevitable result, Patricia argues that the will and two codicils are somehow ambiguous and that, accordingly, the court should have accepted the parol evidence adduced below that the testator intended to provide for Patricia; Patricia also urges that the will should have been voided because the draftsman made a "mistake" in failing to provide for Patricia in the second codicil.These arguments are unavailing.First, there is utterly no ambiguity in the subject will and codicils which would authorize the taking of parol evidence herein, and the trial court was entirely correct in rejecting same.Barnett First Nat'l Bank of Jacksonville v. Cobden, 393 So.2d 78(Fla. 5th DCA1981).Second, the mistake of which Patricia complains amounts, at best, to the draftsman's alleged professional negligence in failing to apprise the testator of the need to expressly provide for Patricia in the second codicil; this is not the type of mistake which voids a will under Section 732.5165, Florida Statutes(1987).In re Mullins' Estate, 128 So.2d 617(Fla. 2d DCA1961).

For the above-stated reasons, the final order under review is, in all respects,

Affirmed.

GERSTEN, J., concurs.

LEVY, J., specially concurs with opinion.

LEVY, Judge (specially concurring).

I write separately only to express my frustration with the apparent inability of the justice system of this State to be in a position to provide relief to someone who is clearly entitled to...