Cason ex rel. Saferight v. Hammock

• Decision Date: 24 June 2005
• Docket Number: No. 5D04-2111.,5D04-2111.
• Citation: 908 So.2d 512
• Parties: John CASON, o/b/o Sarah Elizabeth SAFERIGHT, etc., Appellant, v. Darlene HAMMOCK, Personal Representative, etc., Appellee.
• Court: Florida District Court of Appeals

908 So.2d 512

John CASON, o/b/o Sarah Elizabeth SAFERIGHT, etc., Appellant, v. Darlene HAMMOCK, Personal Representative, etc., Appellee.

No. 5D04-2111.

District Court of Appeal of Florida, Fifth District.

June 24, 2005.

Rehearing Denied August 12, 2005.

Kevin K. Dixon of Kevin K. Dixon, P.A., Inverness, for Appellant.

Eugene A. Wiechens and Russell W. LaPeer, of Landt, Wiechens, LaPeer & Ayres, Ocala, for Appellee.

SAWAYA, C.J.

John Cason, on behalf of his granddaughter, Sarah Saferight, appeals the order denying his Amended Petition for Removal of Personal Representative and the order denying his Petition for Revocation of Probate. These orders emanate from probate proceedings regarding the estate of the decedent, Vivian Saferight, who is Sarah's paternal grandmother. The issues we must resolve are: 1) whether John Cason, Sarah's maternal grandfather, had standing to seek removal of the personal representative; and 2) whether the petitions were timely filed. Before we address these issues we will first discuss the factual and procedural background of the instant case.

Factual And Procedural Background

When Cason discovered that three years prior to her death, Vivian had conveyed her waterfront home to Darlene Hammock, who had provided various services to Vivian the last few years of her life, Cason filed a complaint to set aside the deed on the grounds that it had been procured by Hammock through the use of duress and undue influence or coercion. When Cason discovered that probate proceedings had commenced and that Vivian had left the bulk of her estate to Hammock rather than to Sarah, her only remaining relative, Cason petitioned for revocation of probate on the grounds that Vivian had not possessed the testamentary capacity to execute the will dated May 6, 1998, and that the will was the result of Hammock's undue influence or coercion. Both proceedings were consolidated, and Cason filed a petition to remove Hammock as the personal representative of Vivian's estate, asserting that a conflict of interest arose based on Hammock's defense of the action to set aside the deed and her duties as personal representative of Vivian's estate. The trial court denied both petitions.

To support the trial court's rulings, Hammock asserts two arguments that more specifically frame the issues previously discussed: 1) Cason lacked standing to seek removal of Hammock as personal representative because Sarah, as a specific devisee, was assured of receiving her specific bequest of five thousand dollars from the estate, which, according to Hammock, had sufficient funds to pay that amount; and 2) Sarah was properly served with formal notice of the Notice of Administration pursuant to Florida Probate Rule 5.040(a)(3)(A)(iv), and the petitions were not timely filed because they were not filed within three months of the date of service. We will discuss each issue in the order presented.

Standing

An "interested person" may institute proceedings to remove a personal representative. Fla. Prob. R. 5.440(a). The definition of "interested person" is found in section 731.201(21), Florida Statutes (2003), which provides in pertinent part:

"Interested person" means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. . . . The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

Hammock contends, and the trial court agreed, that Cason lacks standing because Sarah is not an interested person for the reason that there are sufficient funds in the estate to pay Sarah's specific devise of five thousand dollars and, therefore, under section 731.201(21), she will receive complete distribution. We disagree. Section 731.201(21) specifically requires that the beneficiary receive complete distribution and "receive" means that the beneficiary has actually taken possession of the devise under the decedent's will. The fact that the estate has sufficient funds to pay the devise in full is not the equivalent of receipt of the devise by the beneficiary. Until the beneficiary actually receives the devise, he or she "may reasonably be expected to be affected by the outcome of the particular proceeding involved." § 731.201(21), Fla. Stat. (2003). Because there is nothing in the record to indicate that Sarah has received her specific bequest of five thousand dollars, she is an interested person and Cason, on her behalf, has standing to petition for the removal of Hammock as personal representative of Vivian's estate. Therefore, the trial court erred in denying Cason's petition to remove the personal representative on the basis that he lacked standing.

Next we will explain why we disagree with the trial court's ruling that the petitions were not timely filed.

Timeliness Of The Petitions

Cason, on behalf of Sarah, had three months from the date of service of the Notice of Administration to file an objection to the validity of the will or qualifications of the personal representative. § 733.212(3), Fla. Stat. (2003) ("Any interested person on whom a copy of the notice of administration was served must object to the validity of the will, the qualifications of the personal representative, . . . by filing a petition or other pleading . . . in accordance with the Florida Probate Rules within 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred."). In order to be bound by this time limitation, the interested person must have been formally served with a copy of the notice of administration. See § 733.212(1), Fla. Stat. (2003) (requiring that a copy of the notice of administration be served "in the manner provided for service of formal notice. . . ."); Fla. Prob. R. 5.240 (requiring that all beneficiaries be formally served with the notice of administration); Memorial Sloan-Kettering Cancer Ctr. v. Levy, 681 So.2d 842 (Fla. 3d DCA 1996); In re Estate of Ballett, 426 So.2d 1196, 1199 (Fla. 4th DCA 1983) ("If interested persons are to be limited by special time constraints, the personal representative must strictly comply with the statute authorizing such limitations.") (citing Nardi v. Nardi, 390 So.2d 438 (Fla. 3d DCA 1980)).

When Cason filed the two petitions, more than three months had elapsed since Sarah was purportedly served with formal notice of the probate proceedings pursuant to section 733.212(2), Florida Statutes (2003). However, Cason asserts that Sarah was not properly served because at the time of the purported service Sarah, a minor, was residing with a babysitter who actually accepted service for Sarah. Hammock argues that service at Sarah's usual place of abode, which was the residence of the babysitter, was sufficient under Florida Probate Rule 5.040(a)(3)(A)(iv), which provides that formal notice may be served "on any other individual to the individual's usual place of abode or to the place where the individual regularly conducts business.. . ." Hence, we must determine whether this constitutes proper formal service as Hammock contends because, if it does not, the petitions filed by Cason were timely.

Rule 5.040(a)(3) governs service of formal notice and provides that service shall be accomplished in the following manner:

(A) by sending a copy by any commercial delivery service requiring a signed receipt approved by the chief judge of the judicial circuit in which the proceeding is pending or by any form of mail requiring a signed receipt as follows:

(i) to the attorney representing an interested person; or

(ii) to an interested person who has filed a request for notice at the address given in the request for notice; or

(iii) to an incapacitated person to the person's usual place of abode and to the person's legal guardian, if any, at the guardian's usual place of abode or regular place of business; or, if there is no legal guardian, to the incapacitated person at the person's usual place of abode and on the person, if any, having care or custody of the incapacitated person at the usual place of abode or regular place of business of such custodian; or

(iv) on any other individual to the individual's usual place of abode or to the place where the individual regularly conducts business; or

(v) on a corporation or other business entity to its registered office in Florida or its principal business office in Florida or, if neither is known after reasonable inquiry, to its last known address; or

(B) as provided in the Florida Rules of Civil Procedure for service of process; or

(C) as otherwise provided by Florida law for service of process.

Fla. Prob. R. 5.040(a)(3).

This rule does not specify how service is to be made on a minor. Hammock argued in the probate proceedings that formal service was proper under the provisions of rule 5.040(a)(3)(A)(iii), but a minor is not an incapacitated person.¹ Hammock also argues that formal service was made under rule 5.040(a)(3)(A)(iv). We disagree. To extend the provisions of this particular rule to minors may allow service on minors of very young age simply by delivering the notice to their usual place of abode and obtaining their signature or the signature of another minor of very young age who may also reside there. This method of service does not adequately safeguard the due process rights of minors who receive the notice and may not understand its significance or have the ability to take the necessary steps to ensure that their rights are protected.

Moreover, we must apply the rules of statutory construction to the rules of court promulgated by the Florida Supreme Court. Brown v. State, 715 So.2d 241, 243 (Fla.1998) ("Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.") (...