Engelberg v. Birnbaum, 91-0526

• Decision Date: 22 May 1991
• Docket Number: No. 91-0526,91-0526
• Citation: 580 So.2d 828
• Parties: 16 Fla. L. Weekly D1382 Morris ENGELBERG, Petitioner, v. Mildred BIRNBAUM, Respondent.
• Court: Florida District Court of Appeals

Page 828

580 So.2d 828

16 Fla. L. Weekly D1382

Morris ENGELBERG, Petitioner, v. Mildred BIRNBAUM, Respondent.

No. 91-0526.

District Court of Appeal of Florida Fourth District.

May 22, 1991.

Motion to Vacate or Rehear Denied July 10, 1991.

Ronald Sales of Law Office of Ronald Sales, P.A., West Palm Beach, and Jerald C. Cantor of Engelberg, Cantor & Kushner, P.A., Hollywood, for petitioner.

Samuel S. Smith of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Miami, for respondent.

PER CURIAM.

The personal representative under an earlier will has filed a petition for writ of certiorari, seeking review of the trial court's order which found that he lacks standing to contest a later will. The parties agreed that the challenged order is appealable under rule 5.100, Florida Probate Rules. See In re Baker's Estate, 327 So.2d 205 (Fla.1976). For the reasons hereinafter recited, we reverse and remand, while certifying the issue here as being one of great public importance.

Historically, there has been a split of authority on the question of standing. See Annotation, Will--Contest--Personal Representative, 31 A.L.R.2d 756-69 (1953) and 80 Am.Jur.2d Wills Sec. 911 (1975).

While the Florida Supreme Court, in In re Barret's Estate, 40 So.2d 125 (Fla.1949), affirmed an order which dismissed a petition filed by the personal representative named in an earlier will which sought to revoke the probate of a second will, in Hopkins v. McClure, 45 So.2d 656 (Fla.1950), the court affirmed a finding that the nephew of a decedent lacked standing to contest a will where the nephew was "not shown to be either an heir at law or a beneficiary under a former will, or the personal representative in a former will " (emphasis added). Moreover, the court in In re Barret's Estate based its decision on the 1941 version of the Probate Code, which defined "interested person" as follows:

(9) "Interested persons and persons interested in the estate" shall mean heirs, legatees, devisees, distributees, spouses and creditors, or others having a property right in or claim against an estate being administered, and such words shall mean the persons entitled to the estate of a decedent in the event of intestacy.

Sec. 731.03(9), Fla.Stat. (1941).

The current Probate Code defines "interested person" as follows:

(21) "Interested person" means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. The term does not include an heir at law or a devisee who has received his 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.

Sec. 731.201(21), Fla.Stat. (1989) (emphasis added).

Respondent contends that although the definition of "interested person" has been altered, the change is not significant and In re Barret's Estate should still be applicable. However, the annotator in 18 Fla.Jur.2d Decedents' Property Sec. 275 (1980), suggests:

Under the present Probate Code, it appears that the personal representative of a decedent's estate may qualify as an interested person in proceedings to revoke the probate of a will although there is authority, under the former probate law, that an executor of an earlier will does not necessarily have standing to apply for revocation of probate of a later will. ¹

Section 733.212, Florida Statutes (1989), provides that an "interested person" may file an objection to a notice of administration, challenging the validity of a will. Rule 5.230(e), Florida Rules of Probate, provides that objections to the validity of a will shall follow the form and procedure pertaining to revocation of probate. Section 733.109(1), Florida Statutes (1989), provides that any "interested person" may petition the court for revocation of probate. But is petitioner an "interested person?" Section 731.201(21), Florida Statutes (1989), suggests that he is.

In Fenn, Henry A., and Koren, Edward F., "The 1974 Florida Probate Code--A Marriage of Convenience," 27 U.F. Law Review 615, 640 (1975), the authors noted that the language in the 1974 definition of interested person "may change present law that a person named as personal representative in a prior will may not contest a later will." The 1974 definition stated:

(17) "Interested person" means heirs, devisees, the spouse, creditors, beneficiaries, sureties on a personal representative's bond, and any other person having a property right in, or claim against, a trust estate or the estate of a decedent that may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. 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...