Swanson's Estate, In re, 80-1687

• Decision Date: 29 April 1981
• Docket Number: No. 80-1687,80-1687
• Citation: 397 So.2d 465
• Parties: IN re the ESTATE of Kaihi SWANSON, Deceased. Melissa BAIRD and Elizabeth Baird, Appellants, v. Roger A. LARSON, as Personal Representative for the Estate of Kaihi Swanson, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 465

397 So.2d 465

IN re the ESTATE of Kaihi SWANSON, Deceased.

Melissa BAIRD and Elizabeth Baird, Appellants, v. Roger A. LARSON, as Personal Representative for the Estate of Kaihi Swanson, Deceased, Appellee.

No. 80-1687.

District Court of Appeal of Florida, Second District.

April 29, 1981.

James A. Baxter and Elise K. Winters of Baxter & Rinard, P. A., Clearwater, for appellants.

Leslie M. Conklin of Graham, Hodge & Larson, P. A., Belleair Bluffs, for appellee.

CAMPBELL, Judge.

This action is an appeal from the final order granting appellee's motion to abate appellant's petition challenging the validity of Kaihi Swanson's will. The appellants assert that section 732.502(2), Florida Statutes (1979), applies only to the procedural aspects of will execution and, thus, a will may be attacked on substantive grounds outside the state of execution. We agree and reverse the order of the lower court.

Kaihi Swanson, a Georgia domiciliary at the time of her death, executed a will in Georgia and purported to devise real property located in Florida. The will named Raymond Robinson as executor/beneficiary who filed a petition for ancillary administration in Florida. Appellants, the testator's stepdaughters and beneficiaries under a prior will, challenged the petition for ancillary administration by filing a petition for revocation of probate in Pinellas County alleging two substantive grounds: lack of requisite mental capacity and undue influence by Robinson in procuring the Georgia will. The personal representative of Ms. Swanson's ancillary estate responded with a motion to abate the proceedings, contending that Georgia was the proper forum to determine the validity of the will. The lower court agreed and entered the final order of abatement, finding that section 732.502(2) was determinative of appellants' right to challenge the substantive validity of the will.

The question before this court is whether section 732.502(2), governing the validity of wills executed by nonresidents, applies to the substantive as well as procedural aspects of foreign wills. Section 732.502(2) is patterned after the Uniform Probate Code and provides:

Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the testator was at the time of execution....

When a statute has its origins in a uniform law, it should receive a uniform interpretation in all adopting states if the beneficial purpose of uniformity is to be served. Valentine v. Hayes, 102 Fla. 157, 135 So. 538 (1931). Although it may appear that this type of statute should determine both the substantive and procedural aspects of the validity of wills, states adopting similar statutes have limited their applicability to procedural matters because they purport to deal with the "execution" of wills. See R. Leflar, American Conflicts of Law, 402 (3d Ed. 1977). If the statute does not apply to substantive attacks made on a foreign will, then the validity of the will is determined by the common law. Leflar, supra.

When real property is devised, common law dictates that the validity of the will is to be determined according to the law of the situs of the property. Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028 (1900); Restatement 2d, Conflicts of Laws, § 239. Furthermore, if the will devises land in more than one state, "the courts in each state will construe it as to the lands located therein as if devised by separate wills." Trotter v. Van Pelt, 144 Fla. 517, 522, 198 So. 215, 217 (1940).

In Trotter v. Van Pelt, supra, a Virginia domiciliary devised real estate located in Florida. On her death, the will was probated in Virginia but plaintiffs argued on appeal that Virginia decrees affecting the will were not binding on them as to Florida real estate. Rejecting the argument that the issue was res judicata, the Trotter court noted that this was not a collateral attack on the Virginia probate proceedings, and the sole issue was whether the testator died testate or intestate as to Florida real estate. Although it may be argued that Trotter, dealing only with procedural attestation requirements, has been abrogated by section 732.502(2), that argument may be countered by referring to Restatement 2d, Conflicts of Laws, section 239, which can be read to extend the Trotter rule to substantive attacks made against a will. See also Leflar, supra, at 402.

It is a well-settled rule of statutory construction that in determining the legislative intent, the statute under consideration must be viewed in pari materia. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). In examining section 732.502, which is entitled "Execution of wills," matters of substantive validity of a will are never mentioned. The statute begins, "Every will must be in writing and executed as follows:" Each of the subsections deals with some procedural formality required for a valid execution. This statute does not purport to deal with substantive considerations such as mental capacity or undue influence.

Therefore, we conclude that although section 732.502(2) is not identical to the corresponding section of the Uniform Probate Code, it was intended to apply to only those procedures the uniform law governed namely the formal procedural elements of execution. Accordingly, we hold that appellants have the right to attack the Georgia will in a Florida court, on substantive grounds, based on their interest in the real property located in Florida.

Because we feel that legislature might find it desirable to revisit section 732.502(2), we feel it is appropriate here to examine the differences in the Florida statute and the corresponding section of the Uniform Probate Code and the possible consequences of those differences. Professors Fenn and Koren, in their article, The 1974 Florida Probate Code A Marriage of Convenience, 27...