Taxation & Estate Planning

3d DCA: Skipping hearing on contested petition to determine heirs is reversible error

By Juan C. Antúnez

Griem v. Becker, --- So.2d ----, 2007 WL 4482171 (Fla. 3d DCA Dec 26, 2007)

In the linked-to case the trial court first entered an order in favor of one side on a petition to determine heirs because the opposition failed to file a timely response.  When opposing counsel asked the court to reconsider its order, it completely reversed itself and entered an order that went way beyond simply setting aside its original ruling.  Here's how the 3d DCA framed the issue and its ruling:

Pursuant to appellee's motion, the court set aside the Original Order and issued the Order on Appeal which stated in pertinent part:

1. The Motion to Set Aside Order Determining Heirs is hereby GRANTED.

2. The Order Determining Heirs dated October 10, 2006, is hereby set aside and shall have no legal effect. INGRID DIANA GRIEM and DEBORAH GRIEM POSADA are not the beneficiaries of the Estate of Ronald Griem.

3. The marriage between the decedent, RONALD GRIEM, and ANITA BECKER is declared to be in full force and effect since its inception as recognized by the State of Florida.

(Emphasis added.)

It appears that the court endeavored to simply negate the language in the Original Order, but exceeded its intended result. However, while the circuit court attempted to set aside the prior determination as to the heirs, it confusingly stated that Griem's Daughters “are not beneficiaries.” The language used by the court in the Order on Appeal can be interpreted as making a final determination as to whether Griem's Daughters are beneficiaries of Decedent's estate. Likewise, the court specifically “declared” the marriage between the Decedent and appellee “to be in full force and effect since its inception,” despite the fact that the validity of the marriage is being contested in appellant's petition to determine heirs.

Florida Probate Rule 5.385(c) provides that following the filing of a petition to determine heirs, “[a]fter formal notice and hearing, the court shall enter an order determining the beneficiaries or the shares and amounts they are entitled to receive, or both.” Here, there is no indication in the record that a hearing was held on either the determination of heirs or on the validity of Decedent's marriage to appellee.

Accordingly, we affirm Paragraph 1 of the Order on Appeal and Paragraph 2, to the extent that it reads “[t]he Order Determining Heirs dated October 10, 2006, is hereby set aside and shall have no legal effect,” and reverse as to all remaining portions.

Lesson learned?

This case underscores the need for counsel to jealously preserve their client's due process rights in contested probate proceedings.  As I've written about before [click here, here], all too often these proceedings are determined in the absence of valid evidentiary findings or by ignoring existing procedural safeguards.  Don't let this happen to you or your clients.

Full post as published by Florida Probate Litigation Blog on December 28, 2007 (boomark / email).