Estate and Succession Planning
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It’s rare that probate procedural issues make their way to the Supreme Court of Florida. However, on September 1, 2011 the Court issued its highly anticipated decision in Hill v. Davis, 36 Fla. L. Weekly S487 (Fla. 2011). The issue at hand is whether §733.212(3) of the Florida Statutes (2007) bars a challenge to the qualifications of a personal representative if not brought within three (3) months of service of the notice of administration.
The First District Court of Appeal certified its decision to the Florida Supreme Court in Hill v. Davis, 31 So. 3d 921 (Fla. 1st DCA 2010), as being in direct conflict with Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004). While the Court upheld the decision of the First District Court of Appeal, it found that certain aspects of the Angelus decision were correct.
Background
In Hill, the stepson of the decedent was nominated as the personal representative pursuant to the decedent’s will. The will was admitted to probate and Douglas Davis (Douglas) was appointed as the personal representative of the estate of Katherine Davis (Katherine). Douglas was the son of Katherine’s late husband. On July 13, 2001, the court granted letters of administration to Douglas. Hill, Katherine’s mother, was served with a notice of administration on July 24, 2007.
After some unsuccessful attempts to set aside the will, Hill challenged Douglas’s qualifications to serve as personal representative on August 6, 2008. The basis for the challenge was that Douglas was a not a resident of Florida and was not a qualified nonresident pursuant to §733.304 of the Florida Statutes. Generally, nonresidents may serve as personal representatives of Florida estates if the nonresident is related by blood or marriage to the decedent. As to the present case, Douglas’s basis for qualifying to serve was rooted in §733.304(3), which permits nonresidents who are “[a] spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person” to serve as personal representative of an estate. As the son of Katherine’s late husband, Douglas was within this permitted class of persons.
Hill argued Katherine was not married to Douglas’s father at the time of her death because Douglas’s father predeceased Katherine. Thus, Douglas’s father was not Katherine’s “spouse” at the time of her death and Douglas was not within the permissible class of nonresidents eligible to serve as personal representative of Katherine’s estate.
Douglas countered the challenge with substantive and procedural arguments. Substantively, Douglas argued that §733.304(3) did not restrict the definition of spouse to only mean a decedent’s surviving spouse. Procedurally, Douglas argued that Hill’s ability to challenge his qualifications was limited to three (3) months from date of service of the notice of administration pursuant to §733.212(3) of the Florida Statutes (2007), which provides in pertinent part:
(3) Any interested person on whom a copy of the notice of administration is served must object to … the qualifications of the personal representative … by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.
The probate court held in Douglas’s favor on the substantive issues and found that the facts supported his procedural argument. Due to the Angelus decision, the probate court was bound to hold could not find in Douglas’s favor on the procedural issues.
The Angelus Decision
In Angelus, the personal representative of the estate, Pass, alleged in verified pleadings that he was the nephew of the decedent. The court relied on Pass’s statements when appointing him as personal representative. However, Pass, a nonresident of Florida, was the nephew of the decedent’s husband and therefore outside the class of nonresidents permitted to serve. Angelus’s sole descendant, her daughter, challenged Pass’s ability to serve fifteen (15) months after her mother died. The probate court held for Pass on the basis that the challenge was outside the three month limitations period.
However, the Third District Court of Appeal reversed the probate court finding that “[t]he three-month statute of limitations period contained in Section 733.212(3) does not apply to bar Angelus’s petition because Pass was never legally qualified to serve as personal representative at any time.” See Angelus, 868 So. 2d at 573. The court further stated that to hold otherwise would nullify the provisions of §§ 733.304 and 733.3101:
The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§ 733.304, 733.3101, Fla. Stat. (2003). We find no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute nor upon Rule 5.310, particularly where the applicant was never otherwise legally qualified to serve.
First District Court of Appeal
In finding for Douglas, the court distinguished the facts of its case with Angelus stating “This is not a situation where the factual basis for the claim of disqualification was concealed from appellant or arose after the three-month period had expired.” Furthermore, the First District Court of Appeal found the Angelus decision overly broad and disagreed “with the sweeping holding in Angelus because it effectively renders part of section 733.212(3) meaningless.” See Hill, 31 So. 3d at 923. The First District court went on to hold that:
The statute [§733.212(3)] clearly states that interested persons such as appellant “must object to … the qualifications of the personal representative” within three months of the service of the notice of administration or such an objection is “forever barred.” A claim that a nonresident is not qualified to serve as a personal representative pursuant to section 733.304 is an objection to “the qualifications of the personal representative” and should be subject to the clear and unambiguous provisions of section 733.212(3). Id.
Contrary to the probate court, the district court did not opine on the substantive arguments of the case, stating that “[i]n light of this disposition, it is unnecessary for us to decide whether appellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3).”
Supreme Court of Florida
In it’s opinion the Florida Supreme Court noted that it’s standard of review was de novo because the matter was a statutory interpretation. Accordingly, the Court held that if the statute is clear on its face, it must apply the plain language of the statute.
The Court held that §733.212(3) “makes no exception for objections that the personal representative was never qualified to serve. The statutory three-month time limit for filing objections, on its face, applies to any objections to the qualifications of a personal representative.” Accordingly, the Court approved the First District’s decision in Hill on the basis of the facts before the court.
The Court then distinguished the First District ‘s holding slightly from Angelus:
where the factual basis for the claim was known to the challenger and could have been timely raised under the statute. The broad statement in Angelus that section 733.212(3) does not bar untimely objections to a personal representative who was never eligible to serve is unsupported by the text of section 733.212(3). Hill, 36 Fla. L. Weekly at S488.
The Court then held that it approved Angelus in situations where “fraud or misrepresentation” not before the court led to the appointment of the personal representative.
Legislative Proposals
Last month, the Probate and Trust Legislation Committee of the Real Property, Probate and Trust Law Section of The Florida Bar discussed a legislative fix for the Hill and Angelus District Court decisions. Under this proposal, the Probate Code would be revised to conform with the Angelus decision. The statutes would remove challenges to a personal representative’s qualifications from the three (3) month time limit and allow such challenges to be brought at any time.
Conclusion
Unless and until the Florida Statutes are revised, the Hill decision is the current law. Accordingly, challenges to the qualifications of a personal representative are limited by §733.212(3) unless fraud or misrepresentation is involved.
References
You can also find a synopsis of the case by Chuck Rubin and the litigation team at Bryan Cave.
