Ballett's Estate, In re, 81-1458

• Decision Date: 09 February 1983
• Docket Number: No. 81-1458,81-1458
• Citation: 426 So.2d 1196
• Parties: In re ESTATE OF Anna H. BALLETT, Deceased.
• Court: Florida District Court of Appeals

Page 1196

426 So.2d 1196

In re ESTATE OF Anna H. BALLETT, Deceased.

No. 81-1458.

District Court of Appeal of Florida,

Fourth District.

Feb. 9, 1983.

Rehearing Denied March 10, 1983.

George H. Aslanian, Jr., of Casoria, Goff & Friedman, P.A. (withdrawn), and Russell E. Carlisle of Carlisle & Lecates, Fort Lauderdale, for appellant-Edward L. Baron.

Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for appellee-Anna R. Ballett, as Personal Representative of the Estate.

DOWNEY, Judge.

Edward L. Baron appeals from an order dismissing his petition to revoke the probate of the will of Anna H. Ballett.

On October 6, 1980, Baron, the brother and sole survivor of Anna H. Ballett, filed a petition for the intestate administration of the Estate of Anna H. Ballett. The petition was granted and letters of Administration were issued to Baron. However, on November 13, 1980, a petition for revocation of probate was filed by the appellee, Anna R. Ballett, the deceased's sister-in-law, in which she alleged that an order had been previously entered appointing Baron a personal representative of the intestate estate of Anna H. Ballett. The petition alleged that the deceased left a last will and testament dated June 20, 1980, the original of which was filed with the court. The petition prayed for revocation of the letters of administration issued to Baron, admission of the will to probate, and appointment of Anna R. Ballett as personal representative. On the same date Anna R. also filed a petition for administration that listed the beneficiaries named in the will and her nomination as personal representative.

From Anna R.'s brief we glean that, upon receipt of the petition, the probate judge contacted counsel for Anna R., stating that it would be necessary for the parties to "either have a hearing on the revocation or, in the alternative, a Stipulation be entered, before the Court could render an Order." Thereupon, counsel for Baron and Anna R. filed a stipulation that provided that the order appointing Baron as personal representative and the issuance of letters of administration be revoked; that the will of Anna H. Ballett be admitted to probate; and that Anna R. be appointed personal representative. All of the foregoing was confirmed by order dated December 3, 1980. Notice of administration and notice to creditors were first published December 22, 1980. The notice of administration was served only on Anna R. and St. Gregory's Catholic Church.

On March 24, 1981, Baron filed a petition for revocation of probate of the decedent's will dated June 20, 1980, alleging that Anna R. had procured the will by the exercise of undue influence. Anna R. moved to dismiss Baron's petition on the grounds that: (a) Baron was not an interested person within the meaning of the probate statutes and so had no standing to attack the probate of the will; (b) Baron's entry into the stipulation and the court's entry of the order of December 4, 1980, precluded Baron's petition for revocation because he waived his right to attack the will; (c) the petition was not timely filed since it was not filed within three months of the first publication of the notice of administration. From the order granting that motion, Baron has perfected this appeal.

It is apparent from the order denying petition for rehearing that the trial court dismissed Baron's petition for revocation of probate a) because of Baron's earlier stipulation that the order appointing him as personal representative and issuing letters of administration to him be revoked and that the will be admitted to probate and letters issue to Anna R., and b) because Baron's petition to revoke probate of the will was filed more than three months from the date of the order entered upon the earlier stipulation. Thus, the trial court concluded that Baron had waived any right to such revocation of the probate of said will.

Baron contends on appeal that the stipulation was not intended as a waiver of any right to attack the will but was entered into by the parties to allow the will to be filed and the administration proceed without necessarily affecting anyone's rights. It is Baron's position that the time constraints of Sections 733.212 and 733.2123, Florida Statutes (1979), are not applicable to preclude his attack upon the will because Anna R., as personal representative, did not invoke those provisions to shorten the time within which an interested person could file a petition to revoke probate.

Revocation of probate is controlled by Section 733.109(1), which provides:

(1) Any interested person, including a beneficiary under a prior will, except those barred under s. 733.212 or s. 733.2123, may, before final discharge of the personal representative, petition the court in which the will was admitted to probate for revocation of probate.

However, if an interested person has been served with formal Notice of Administration pursuant to SECTION 733.212 , FLORIDA STATUTES¹, he must file his objection to the will within three months of the first publication of Notice of Administration. If, pursuant to 733.2123 ² the petitioner serves formal notice of Petition for Administration on an interested person prior to issuance of letters, that person may not...