Newman v. Newman, No. 5D99-920
Decision Date | 28 July 2000 |
Docket Number | No. 5D99-1190., No. 5D99-920 |
Parties | Arthur M. NEWMAN, III, Appellant, v. Ethel NEWMAN, Personal Representative of the Estate of A.M. Newman, Appellee. |
Court | Florida District Court of Appeals |
Bruce Johns, Daytona Beach, for Appellant.
Jerry B. Wells of Wells, Revis, Elton & Gardner, Daytona Beach, for Appellee. KAHN, L.D., Associate Judge.
In this consolidated appeal, Arthur M. Newman, III ("Arthur") appeals from two orders entered by the circuit court concerning the estate of his father, A.M. Newman, also known as Arthur M. Newman, Jr ("decedent"). The trial court found that Arthur had intentionally and without good cause challenged his father's will and delayed distribution of his father's estate to his step-mother; therefore, Arthur was not entitled to inherit under the will. We affirm.
A.M. Newman died on June 29, 1997. In his will dated August 1962, the decedent bequeathed all of his estate to his wife, Ethel Newman ("Ethel"), and named her executrix. Ethel was ninety one years old at the time of decedent's death. Ethel was Arthur's step-mother. She had two children, who are not the children of the decedent. The will also provided:
Should my said wife predecease me, or should be deceased before the distribution of my estate, or we die in a common disaster, or my wife die within three months from injuries sustained in a common disaster, then I give, devise and bequeath all the rest, residue, and remainder of my estate as follows: ONE-HALF (½) to my wife's children: EDWIN L. SANDERS, JR. and FLORA ESTELLE BROGDEN, To be divided between them equally. ONE-HALF (½) to my Son, ARTHUR M. NEWMAN, III.
On July 7, 1997, Ethel filed a Petition for Administration along with decedent's will. The will was admitted to probate, and letters of administration were issued to Ethel. On October 3, 1997, Arthur filed a petition challenging the validity of the 1962 will, alleging that decedent's signature on that will was a forgery. In Arthur's first amended petition he attached the opinion of a handwriting analyst that the decedent's signature on the 1962 will was not genuine.1 Ethel moved to dismiss the first amended petition. She filed the oath of one of the witnesses to the 1962 will. The oath stated that the probated will was the one that he had witnessed.
On October 10, 1998, Ethel died.2 On October 27, 1998, the successor personal representative moved for summary judgment on the basis that Arthur had no proof that the will was a forgery, other than the handwriting expert's opinion. The affidavit of Berrien Becks, the attorney who prepared the decedent's 1962 will, was also filed. Becks attested that the will that had been admitted into probate was the will that Becks had prepared in accordance with decedent's wishes.
Arthur filed several affidavits in opposition to the Estate's Motion for Summary Judgment. In addition to affidavits of handwriting experts, Arthur filed the affidavits of his son, Arthur Newman IV, his grandson, Arthur Newman V, decedent's brother, Donald, and a close associate of the parties, Martin Wilcox. The affidavits generally state that the signature on the 1962 will is not, in the affiants' opinions, that of the decedent, and that the decedent had promised his family that he would leave them "well provided for" and "taken care," and that the will did not represent decedent's true wishes.
On December 7, 1998, Arthur filed a Motion to Determine Beneficiaries. Arthur alleged in that motion that since Ethel had died before his father's estate had been distributed, that he and Ethel's two children should be determined as the beneficiaries under the will. This was the same will that Arthur was contesting. A hearing was held on March 4, 1999, and the Court granted Ethel's Motion for Summary Judgment as to the validity of the 1962 will. The Order stated in pertinent part:
This cause was heard on respondent's motion for summary judgment.... The court reviewed the uncontroverted affidavits of the three (3) witnesses to the decedent's will. The court reviewed Attorney Berrien Becks affidavit concerning the preparation of the decedent's will. The court reviewed the affidavits filed by petitioner.... The court reviewed the Dozier v. Smith decision found at 446 So.2d 1107 (Fla.App. 2 Dist. 1984), filed by respondent ... and based on the foregoing facts the court found Dozier, supra, controlling in this matter... the court found as a matter of law the respondent's motion for summary judgment is GRANTED.
In a separate Order, the court found that despite Ethel's death, Ethel's estate was the sole beneficiary under the Decedent's 1962 will. The trial court found that Arthur had intentionally and without good cause delayed the distribution of the estate until his step-mother had died. The Order rendered by the lower court stated:
Arthur appealed both orders.4
Throughout the case the Estate has argued in the trial court and in its briefs before this court that Arthur lacks standing to challenge the validity of the 1962 will. This Court agrees. Arthur acknowledged the genuineness of his father's signature on the 1954 will, and he has not challenged that will. Section 733.109(1), Florida Statutes (1997) provides that "any interested person" may bring an action for revocation of probate. An "interested person" is defined as: § 731.201(21), Fla. Stat. (1997).
Arthur was actually disinherited in his father's 1954 will since he was bequeathed only one dollar in that will. See e.g. Barrera v. Vanpelt, 965 S.W.2d 780, 781 (Ark.1998) ( ); In re Estate of Evans, 79 Cal. Rptr. 1, 7 (Cal.App.1969) ( ); In re Estate of Spivey, 1994 WL 697884 at *1, *2, n. 2 (Tenn.Ct.App. Dec. 14, 1994) ...
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