Estate of Boyar, In re, s. 90-2541
| Decision Date | 08 January 1992 |
| Docket Number | Nos. 90-2541,91-0538,s. 90-2541 |
| Citation | 592 So.2d 341 |
| Parties | 17 Fla. L. Weekly D208 In re ESTATE OF Leonard M. BOYAR, Deceased. |
| Court | Florida District Court of Appeals |
John Beranek of Aurell, Radey, Hinkle & Thomas, Tallahassee, for appellee-Christine L. Lambertus, as Personal Representative of the Florida Estate of Leonard M. Boyar, Deceased.
Kenneth R. Mikos, Fort Lauderdale, for appellees-Diana Sladek, individually and as parent of Tiffany Sladek, Charles Gifford, Robert Morris and Robert Boyar.
H. Terrell Griffin of Griffin, Linder & Wright, P.A., Orlando, for appellee-Anna May Right.
This case involves the enforcement of a contract between husband and wife in which they agreed not to alter or change the testamentary disposition contained in their respective wills. The trial court held the contract was valid and that the surviving husband breached it when he executed a new will changing his testamentary disposition. The trial court rendered two summary judgments in favor of the previous will's beneficiaries, and the personal representative of the deceased husband's estate has appealed both.
Leonard and Dorothy Boyar, husband and wife, executed their wills, the former on September 27, 1978, and the latter on September 28, 1978. Also on September 28th, they executed an agreement styled AGREEMENT NOT TO REVOKE OR CHANGE WILL. Said agreement contained two sections, one styled WILL NOT BE REVOKED OR CHANGED and the other CUSTODY OF WILL AND CONTRACT. In Section One, Dorothy agreed not to change or revoke her will or make a new will which would reduce her bequest to Leonard's son, Robert Boyar. Leonard agreed that he would not revoke or change his will which devised and bequeathed his estate to his son, Robert, and to Dorothy's designated children or grandchildren. Section Two provided that an executed copy of the contract, together with Dorothy's original will of September 28th and Leonard's original will of September 27th were to be deposited with William T. Stephens, Dorothy's brother and the lawyer who prepared both wills and the contract involved herein.
Dorothy died in 1986 and her 1978 will was deposited with the Broward County Circuit Court. However, no probate proceedings were initiated because all of Dorothy's property was held as tenancies by the entirety with her husband Leonard. Some three years after Dorothy's death, Leonard executed a new will, dated August 30, 1989, in which he abandoned the testamentary disposition contained in his 1978 will and left his entire estate to his brother, a sister, and a friend. The later will was admitted to probate, and the various beneficiaries of the previous 1978 will filed claims against the estate for breach of the contract not to revoke or change the 1978 will. The trial court ruled in favor of the beneficiaries of the 1978 will, and thus against the personal representative of Leonard's estate.
The personal representative of the estate, as the proponent of the 1989 will, seeks reversal of the trial court's judgments on the procedural ground that summary judgment was premature because of the continued existence of genuine issues of material fact. Furthermore, on a substantive basis, appellant contends that the record indicated that Section Two of the September 28th contract was never complied with, in that neither Dorothy nor Leonard deposited their wills and the contract with William Stephens, and thus the contract never became effective.
The appellees assert that no genuine issues of material fact exist and that whether the wills and contract were ever deposited with Stephens is of no legal consequence vis-a-vis the legal effect of the contract not to revoke their wills.
Initially, we note that it is not clear whether the wills and contract were ever deposited with Stephens. What is clear is that both the wills and contract were properly executed; and that when Dorothy died, her will was in her possession and no one seems to know where the original contract is located. As indicated above, Stephens prepared the wills and the contract, and he testified by deposition that he has an office file that contains only copies of the papers that he prepared. He has no recollection whether the wills and contract were ever deposited with him, and, if deposited, when they were returned to Dorothy and Leonard.
The trial judge was not impressed with the arguments presented by appellant and found that there was nothing facially in the agreement which indicated...
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