CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 159, 2014 WL 1240073, 2014 Fla. LEXIS 1027
...This ease is before the Court for review of the decision of the First District Court of Appeal in Basile v. Aldrich,
70 So.3d 682 (Fla. 1st DCA 2011), where the district court certified the following question to be of great public importance: WHETHER SECTION
732.6005, FLORIDA STATUTES (2004) REQUIRES CONSTRUING A WILL AS DISPOSING OF PROPERTY NOT NAMED OR IN ANY WAY DESCRIBED IN THE WILL, DESPITE THE ABSENCE OF ANY RESIDUARY CLAUSE, OR ANY OTHER CLAUSE DISPOSING OF THE PROPERTY, WHERE THE DECEDENT ACQUIRED THE PROPERTY IN QUESTION AFTER THE WILL WAS EXECUTED? Id....
...m. Id. at 683-84 . As support for this assertion, Mr. Aldrich cited: (1) the language of the will that only named Ms. Aldrich’s predeceased sister and Mr. Aldrich as beneficiaries and disposed of all of the property then owned by the decedent; (2) section 732.6005(2), Florida Statutes, which provides that a will shall be construed to pass all property that the testator owned at death, including property acquired after the will is executed; and (3) the legal presumptions against a construction...
...perty not mentioned in the will, so that she died intestate as to the Putnam County property and the cash in the non-IRA Fidelity Investments account. Id. The trial court entered summary judgment in favor of Mr. Aldrich on the purported authority of section 732.6005(2). Id. The First District reversed the decision of the trial court, concluding that section 732.6005(2) does not control the question presented by these facts because the disputed property was not alluded to in the will and, therefore, it is irrelevant whether it was acquired before or after the will was executed. Id. The First District determined that only subsection (1), not (2), of section 732.6005 applies to the instant case. Id. at 686 . Section 732.6005(1) provides: “The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions.” § 732.6005(1), Fla....
...See § 732.602, Fla. Stat. (Supp.1974). The staff analysis conducted in conjunction with the amendment indicates that the amendment was not intended to substantively change section 5477(2) of the Probate Act of 1933. In 1975, former section 732.602 was repealed, and section 732.6005 was created. Ch. 75-220, §§ 33, 35, at 519-20, Laws, of Fla. The original version of section 732.6005 has never been amended. Section 732.6005, Florida Statutes (2004), provides: (1) The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions....
...at 685, the legislative analysis for Chapter 74-106 contains a diagram entitled “Analysis of Major Changes-Florida Probate Code” which delineates then current laws and the proposed changes that would occur under the Florida Probate Code; former section 732.602 (currently section 732.6005(2)) was not listed as a “major change,” nor was any other statute related to property acquired after the execution of a will....
...and not to change the law. See Respondent’s Brief, at 21-2 (citing State ex rel. Szabo Food Servs., Inc. of N. Carolina v. Dickinson,
286 So.2d 529 , 531 (Fla.1973)). Also important in this analysis is how Florida’s intestacy statute relates to section
732.6005....
...f the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code. Ch. 74-106, § 1; §
732.101, Fla. Stat. (2004). The legislature adopted section 732.602 (currently section
732.6005(2)) in the same chapter. Id. Section
732.6005(2) provides: ... a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will. §
732.6005(2), Fla....
...401 , 404 (1919); Adams,
60 So.2d at 547 (Testator’s intention should be gleaned from four corners of will, unless language employed is ambiguous, in which case competent witnesses’ testimony may be received and considered as aid to court in determining such intention.); see also §
732.6005(1), Fla....
...In that instance, the court would be required to equitably distribute the testator’s property. This is a task that has been reserved for the Legislature and has been accomplished through the intestacy statute. See §§
732.102,
732.103, Fla. Stat. Further, section
732.6005(2) states that “[t]he rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.” §
732.6005(2), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 13243, 2011 WL 3696309
...ad inherited from her sister, to pass to him, citing (1) "[t]he will itself, which names only decedent's predeceased sister, Ms. Eaton, and [Mr. Aldrich] as beneficiaries, and which devised all of the property then owned by decedent"; (2) "[s]ection 732.6005(2), [Florida Statutes], which provides that a will is to be construed to pass all property that a testator owns at death, including property acquired after the execution of the will"; and (3) "[t]he legal presumption that in making a will a...
...property or any other property not mentioned in the will, so that she had died intestate as to the Putnam County property and the cash in the non-IRA Fidelity Investments account. The trial court rejected this argument on the purported authority of section 732.6005(2), and entered summary final judgment in favor of Mr. Aldrich. But section 732.6005(2) does not control the question....
...ng statutes in the format of the Uniform Probate Code insofar as possible. This had the effect of preserving considerable decisional law and of avoiding a number of significant and untested changes." In 1975, former section 732.602 was repealed, and section
732.6005 was created. Ch. 75-220, §§ 33, 35, at 519-20, Laws. of Fla. Except for "genderfication," see Chapter 97-102, § 965, at 1342, Laws of Florida, and Chapter 2001-226, § 49, at 2004, Laws of Florida, the original version of section
732.6005 has never been amended. State, Dept. of Children & Family Servs. v. L.G.,
801 So.2d 1047, 1052 (Fla. 1st DCA 2001). Section
732.6005, Florida Statutes (2009), provides: (1) The intention of the testator as expressed in the will controls the legal effect of the testator's dispositions....
...The *686 rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.[ [3] ] (2) Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will. (Emphasis supplied.) Section
732.6005 has always been codified under Part VI of the Florida Probate Code, the part entitled "rules of construction." III. Only subsection (1) of section
732.6005 applies to the dispute here: If discernible from the will, the testator's intent must be given effect, unless doing so would be illegal or otherwise contrary to public policy. See In re Estate of Tolin,
622 So.2d 988, 990 (Fla.1993); First Union Nat'l Bank of Fla., N.A. v. Frumkin,
659 So.2d 463, 464 (Fla. 3d DCA 1995); Rogers v. Atl. Nat'l Bank of Jacksonville,
371 So.2d 174, 176 (Fla. 1st DCA 1979). Subsection (2) of section
732.6005 does not apply because it is expressly "[s]ubject to" subsection (1), which provides: "The intention of the testator as expressed in the will controls the legal effect of the testator's dispositions." §
732.6005(1), Fla....
...A will is not subject to judicial revision merely because it does not dispose of all of the testator's property. Given the specificity of the devise and bequests in Ann Dunn Aldrich's will, including the house address, account numbers and a vehicle identification number, invocation of section 732.6005(2) as a basis for construing the will to dispose of the Putnam County property and an account not identified in the will is unwarranted....
...While the will does not dispose of all the property Ann Dunn Aldrich owned at her death, this circumstance is hardly unique to her or her estate and does not contravene any rule of law or public policy. Nor does the will reflect any mistake on her part. The provisions of section 732.6005 plainly do require that the specific bequest of the contents of the Keystone Heights house be "construed to pass all" such contents which Ms. Aldrich owned at the time of her death "including property [any contents of the house] acquired after the execution of the will." § 732.6005(2), Fla....
...er death in each of the bank accounts the will specifies, including money deposited in those accounts "after the execution of the will." Id. We reject the separate opinion's perplexing contention that in "effect, the majority opinion determines that section 732.6005 does not apply to wills that do not contain general devises or a residuary clause." Post, p. 15. *688 But no residuary clause nor any other "intention of the testator as expressed in the will" encompasses the Putnam County realty or any personalty aside from the subjects of the specific bequests. § 732.6005(1), Fla....
...ash in a non-IRA account at Fidelity Investments at the time she executed her will, or acquired the real property and deposited the cash afterwards. In either event, the will as written and executed failed to dispose of those unmentioned assets. VI. Section 732.6005(2) is, after all, a rule of construction....
...In an abundance of caution, we certify the following question as a question of great public importance within the meaning of Article V, section 3(b)(4) of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): WHETHER SECTION 732.6005, FLORIDA STATUTES (2004), REQUIRES CONSTRUING A WILL AS DISPOSING OF PROPERTY NOT NAMED OR IN ANY WAY DESCRIBED IN THE WILL, DESPITE THE ABSENCE OF ANY RESIDUARY CLAUSE, OR ANY OTHER CLAUSE DISPOSING OF THE PROPERTY, WHERE THE DECEDE...
...ngs consistent with this opinion. THOMAS, J., Concurs; VAN NORTWICK, J., Concurs in Part and Dissents in Part with Opinion. VAN NORTWICK, J., concurring in part and dissenting in part. I believe that the trial court correctly interpreted and applied section 732.6005(2), Florida Statutes (2004), in a *689 manner consistent with legislative intent....
...ted her will in 2004 would pass under the will to appellee, the sole remaining beneficiary named in the will. Accordingly, I respectfully dissent to all but Part VII of the majority opinion. I concur in the certification of the question in Part VII. Section 732.6005 falls under Part VI of the Florida Probate Code, entitled "Rules of Construction." In its entirety, it reads as follows: 732.6005 Rules of construction and intention. (1) The intention of the testator as expressed in the will controls the legal effect of the testator's dispositions....
...intention is indicated by the will. (2) Subject to the foregoing, a will is construed to pass all property which the testator owns at death, including property acquired after the execution of the will. In effect, the majority opinion determines that section 732.6005 does not apply to wills that do not contain general devises or a residuary clause. The majority concludes that, since Ms. Aldrich's will did not dispose all of her property, she intended partial intestacy. However, the unambiguous language of section 732.6005 does not support this conclusion....
...As earlier emphasized by the supreme court, "[t]he law of wills is calculated to avoid speculation as to the testator's intent and to concentrate upon what he said rather than what he might, or should, have wanted to say." In re Pratt's Estate, *690
88 So.2d 499, 504 (Fla.1956). Unquestionably, both section
732.6005 and its predecessor statutes embody this salutary purpose. Furthermore, former section 731.05(2) and present section
732.6005(2) share an additional goal in will construction directed toward effectuating the intent of the testator, that being "a presumption against partial intestacy and allow[ing] a will to pass after-acquired property, absent a contrary intent." Henry A....
...2d DCA 1983) (observing that disposition under a will is favored over intestacy). In their article reviewing the expansive revision of the Florida Probate Code in 1974, the commentators were referring to then section 732.602, Florida Statutes (1974)the precursor to section 732.6005that they described as "simply provid[ing]" that "`[a] will is construed to pass all property that the testator owns at his death including property acquired after the execution of the will.'" Fenn & Koren, 27 U....
...732.602, Florida Statutes (1974), it "appli[ed] only to wills containing a residuary clause." Id. at 32 n. 212 (emphasis added). In the newly created section 732.602, the legislature omitted the "residuary clause" language, and it is also absent in section 732.6005(2). As other recent commentators have observed of section 732.6005(2): A will is construed to pass all property a testator owns at death, including property acquired after the execution of the will.[n.1] Disposition under a will is favored over intestacy.[n.2] Accordingly, if a will contains no resi...
...sets the testator owned at the time of death, the will will be construed to make such disposition. See 12 Abraham M. Mora, Shelly Wald, & Lorna J. Scharlacken, Florida Estate Planning § 18:41 (2010-11 ed.) (bracketed footnotes citing, respectively, section
732.6005(2), Florida Statutes, and Dutcher v. Estate of Dutcher,
437 So.2d 788 (Fla. 2d DCA 1983)). The majority's holding, that section
732.6005(2) requires a residuary clause to pass after-acquired property under a will, simply reinserts through implication language that was expressly omitted by the legislature in 1974....
...n its plain and obvious meaning." Knowles v. Beverly Enterprises-Fla., Inc.,
898 So.2d 1, 5 (Fla.2004) (citing Holly v. Auld,
450 So.2d 217, 219 (Fla.1984)). By its clear and unambiguous terms, "unless a contrary intention is indicated in the will," section
732.6005(2) is "subject to" only the limitations expressed in subsection (1), those being "the intention of the testator as expressed in the will," and the "rules of construction" contained in Part VI of chapter 732 (i.e., section
732.601 ("S...
...05 ("Change in securities"), section
732.606 ("Nonademption of specific devises"), section
732.607 ("Exercise of power of appointment"), section
732.608 ("Construction of generic terms") and section
732.609 ("Ademption by satisfaction")). Otherwise, section
732.6005(2) mandates that after-acquired property passes under the will, notwithstanding the absence of a residuary clause....
...Because none of the "rules of construction" expressed in Part VI apply in this case, the sole consideration relevant to resolving the issue at hand is the decedent's intent as expressed in her will. The majority opinion relies on the only case that has directly addressed section
732.6005(2), In re Estate of Barker,
448 So.2d 28 (Fla....
...testator from disposing of only a portion of his estate by will and allowing the balance to be distributed according to the law of intestate succession." Id. at 31. Significantly, however, this court also held, "[f]urther, appellant's reliance upon Section 732.6005(2), Florida Statutes, dealing with testamentary intent regarding after-acquired property is misplaced....
...s in original). Given that clear intent, and in the absence of the application of any of the other rules of construction contained in Part VI of chapter 732, the property acquired by the decedent following the death of her sister would, by virtue of section 732.6005(2), pass under the will to appellee, and not according to the rules of intestacy to be divided between appellants and appellee. The trial court's construction of the decedent's will is consistent with the meaning and intent of section 732.6005(2). Accordingly, the property acquired by the decedent from her sister following the execution of the decedent's will passed by the decedent's will according to the decedent's intent as expressed in her will. Section 732.6005(2) is wholly dependent on the testator's intent as expressed in the will, and this case presents no circumstances that cannot be resolved by an application of the plain language of the statute to the decedent's *692 intent....
...will not only passes property owned at death that is not otherwise devised, even though the property was acquired by the testator after the will was executed, but also passes property acquired by a testator's estate after his or her death." Id. [3] Section 732.6005(1), Florida Statutes (2009) is based on and virtually identical to section 2-603 of the 1969 Uniform Probate Code....
