FOURTH DCA: A TRUST CONTESTANT MAY NEED TO CHALLENGE THE WILL, TOO [FLORIDA]

[This post was authored by Sean Lebowitz, Esq. of our office]

In Pasquale, Jr. v. Loving, et. al.,* the Fourth District Court of Appeal determined that a trust contestant must also challenge a will if the trust is incorporated by reference into the will. This is an important lesson for probate and trust litigators.

In Pasquale, the Plaintiffs were served with Notices of Administration and filed a Complaint with the Probate Court within the three month time limitation imposed by Florida Statute § 733.212. The Complaint did not specifically reference the last Will, and instead, focused on several Trust instruments which Plaintiffs were attempting to overturn for reasons of lack of testamentary capacity, undue influence and tortious interference.

The Defendants responded with Motions to Dismiss seeking the Court to dismiss, with prejudice, the Plaintiffs’ Complaint because it failed to attack the last Will within the requisite time frame and doing so was required since the Trust was incorporated by reference into the Will. In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will. The Probate Court agreed and granted Defendants’ Motions to Dismiss, with prejudice.

The Fourth District Court of Appeal reversed the Probate Court’s dismissal with prejudice. The Appellate Court agreed with the Defendants’ legal reasoning and arguments – that a trust contestant is required to timely object to the Will if the trust is incorporated by reference into the Will. However, the Appellate Court found under the facts of the case that the Plaintiffs’ Complaint contained enough language that it sufficiently constituted a will contest even though the last Will was never specifically referenced.

While, as a factual matter, the Appellate Court’s decision may be at odds with the strict limitations imposed by the Florida Probate Code as to the requirements to object to the validity of a Will, the Court appeared lenient in interpreting the Plaintiffs’ pleading in order to undo the harsh remedy of a dismissal with prejudice. The lessons learned for probate and trust litigators seeking to challenge a trust instrument are to (a) determine in a pour-over situation whether an action to challenge the Will is also needed by reason of incorporation by reference of the trust in the Will, and (b) to always be mindful of the time limitations to contest a Will which may shorter than the limitations relating to a trust challenge.

 

*Disclaimer: This law firm represents the Appellee/Defendant, CitiTrust, in its capacity as Personal Representative and Trustee in the probate and trust litigation.

Pasquale, Jr. v. Loving, et. al., 2012 WL 933030