Florida/Georgia Personal Injury & Workers Compensation

...Appellants sought conveyance of Welch's residence and an accounting for residuary amounts, both of *218 which they would have received under the earlier will. They also sought punitive damages. After one journey through the federal courts, the district court on remand dismissed the cause on the ground that section 733.103(2), Florida Statutes (1977), [1] foreclosed appellants from proving the facts necessary to establish their tort claim....

...Gaines, 104 U.S. 386, 392-93, *221 26 L.Ed. 757 (1881). The state's interest in an orderly succession of property can outweigh a party's equal protection or due process interests. See Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Because section 733.103(2) is little more than the codification of the common-law rule against collateral attack and is predicated on principles of res judicata and collateral estoppel, we are unable to perceive how a rule so basic to our system of jurisprudence can deny appellants due process of law. In sum, we find that appellants had an adequate remedy in probate with a fair opportunity to pursue it. Because they lacked assiduity in failing to avail themselves of this remedy, we interpret section 733.103(2) as barring appellants from a subsequent action in tort for wrongful interference with a testamentary expectancy, and accordingly answer the certified question in the affirmative....

...stamentary capacity, causing the testator to execute the probated will, which was less favorable to the plaintiffs and more favorable to the defendants than the testator's previous will. The trial court dismissed the action, finding that pursuant to section 733.103(2), Florida Statutes (1977), the plaintiffs were foreclosed from proving the facts necessary to establish a cause of action for intentional interference with an expectancy of inheritance. Section 733.103(2), Florida Statutes (1977), provides as follows: [1] In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent...

...." Id. In conclusion, the Florida Supreme Court held: In sum, we find that [plaintiffs] had an adequate remedy in probate with a fair opportunity to pursue it. Because they lacked assiduity in failing to avail themselves of this remedy, we interpret section 733.103(2) as barring [plaintiffs] from a subsequent action in tort for wrongful interference with a testamentary expectancy, and accordingly answer the certified question in the affirmative....

...new of the probate proceeding, they did not contest the will in probate court because the defendant made fraudulent statements inducing them not to contest the will. The trial court granted the defendant's motion to dismiss, finding that pursuant to section 733.103, Florida Statutes (1983), the plaintiffs were barred from attacking the will....

...." Id. The court noted that the fraud alleged in the complaint prevented the plaintiffs from pursuing the incapacity claim in the probate court, and therefore, the action "falls into the category of cases that DeWitt considers outside the purview of Section 733.103(2), Florida Statutes." Id....

...ated. Hence Davison v. Feuerherd, 391 So.2d 799 (Fla. 2d DCA 1980), involved interference with expectancies from a revocable trust a matter apparently outside of probate jurisdiction. DeWitt, 408 So.2d at 219. The probate statute involved in DeWitt, section 733.103(2), Fla....

...The trial court in DeWitt concluded that the above statute prohibited plaintiffs' wrongful interference action because it would have been "relitigating issues of undue influence and testamentary capacity." DeWitt at 218. In concluding that the trial court was correct, the supreme court characterized section 733.103(2) as "little more than the codification of the common-law rule against collateral attack and is predicated on principles of res judicata and collateral estoppel ..." DeWitt at 221....

...Accordingly, even if the sons had successfully attacked the will, that would have changed the disposition of only about $300,000. DeWitt is thus distinguishable. There are simply too many distinctions, both procedural [4] and substantive, between *908 wills and trusts, for the reasoning of DeWitt, and the purpose of section 733.103(2), as it was articulated in DeWitt, to preclude the claims brought in this case....

...He contends that, at best, she had a mere expectancy. As a result, he posits that Florida's recording act does not apply. Thus, according to Mr. Rice, under common law, Mr. Rice's agreement with Mrs. Schwartz has priority. In support of his argument, Mr. Rice points to section 733.103(1), Florida Statutes (2004). Section 733.103(1) provides that "[u]ntil admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator." While true, Mr....

...Rice's argument fails to consider section 732.514, Florida Statutes (2004), which provides, "[t]he death of the testator is the event that vests the right to devises unless the testator in the will has provided that some other event must happen before the devise vests." Mr. Rice is correct that under section 733.103, Mr....

...[6] The instant case may be contrasted with a post-probate action for wrongful interference with an inheritance grounded on fraud or undue influence as was involved in DeWitt v. Duce . In that case, not involving homestead, the supreme court held that section 733.103, Florida Statutes, barred such a collateral attack where the appellants, beneficiaries under the will, had an adequate remedy in probate with a fair opportunity to pursue it....

...We conclude that the Charities' failure to discover the alleged undue influence of Mrs. Owens does not render inadequate the remedy provided by section 733.212(1)(b), Florida Statutes (1993). The public policy of finality concerning devised property contained in section 733.103(2), Florida Statutes (1993), and recognized by the supreme court in DeWitt, requires that any such theory of "concealed tortious interference" be carefully restricted....

...devise after they failed to file a timely objection—should be permitted because Mrs. Owens concealed the inter vivos transfers. If we were to accept the Charities' theory, it would substantially impact upon the public policy of finality advanced by section 733.103(2), Florida Statutes (1993)....

...4th DCA 1998) (finding personal representative's failure to give notice to beneficiaries of prior will, which notice is not required by statute, did not constitute fraud that would permit reopening estate after discharge of personal representative). [6] Section 733.103(2), Florida Statutes (1993) provides: In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free o...

...erence. The disposition of the count for tortious interference was not appealed, presumably because the finding of testamentary capacity and no undue influence were conclusive as to "any collateral action or proceeding relating to devised property." § 733.103(2), Fla....

...We asked the question because it is apparent that, if appellant had prevailed on lack of testamentary capacity or undue influence, the tortious interference claim would be moot. If she did not succeed in revoking the will, the interference claim would be barred by section 733.103(2), Florida Statutes, which, as our supreme court observed in DeWitt, is "predicated on principles of res judicata and collateral estoppel." DeWitt, 408 So.2d at 221....

...loan. 2 According to Wilson, because Edward Kowalski’s will had no legal effect, the November 7, 2008 letter designating Kowalski the policy’s owner was not effective. To support this position, Wilson relies upon Florida case law and Fla. Stat. § 733.103 which provides that “[u]ntil admitted to probate in this state or in a state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.” Fla. Stat. § 733.103 (1)....

...In 1983, appellants filed suit against Voltz, alleging that Voltz made certain fraudulent statements inducing them not to contest the will and seeking relief therefor. Voltz moved to dismiss their complaint on the ground that they failed to exhaust their probate remedy, thus barring them from collaterally attacking, under Section 733.103, Florida Statutes (1983)....

...ir mother's assets despite its provisions, knowing that they would rely on this representation. The issues on appeal are as follows: *785 I. Whether the facts alleged present a cause of action cognizable by a court. We conclude they did. II. Whether Section 733.103(2), Florida Statutes is an unconstitutional infringement on the Supreme Court's power to promulgate rules of procedure. We conclude it is not. I There has been little case law illuminating Section 733.103(2), Florida Statutes (1983), so we must rely heavily on DeWitt v....

...Appellants originally intended to contest this will, but dismissed their petition and the will was duly probated. Later, they tried to file an action for wrongful interference with an inheritance in federal court. That court certified the question of whether such a suit was barred by Section 733.103(2) to the Florida Supreme Court, and the answer is the DeWitt opinion. Section 733.103(2), Florida Statutes, both in 1977 and presently, provides that the probate of a Florida will shall be conclusive of the testator's competence in any collateral action relating to property devised by the will....

...It rejected the idea that punitive damages could affect the adequacy of the relief because they are not a valid expectation. Accordingly, the court found that there was an adequate remedy in probate which appellants had failed to pursue, barring them from collateral attack by the limitation in Section 733.103(2)....

...In the instant case, the facts alleged by appellants and accepted as true for purposes of the motion to dismiss indicate fraud on appellants, preventing them from litigating the incapacity claim. This case therefore falls into the category of cases that DeWitt considers outside the purview of Section 733.103(2), Florida Statutes....

...Regardless, we need not decide that issue today. Whether or not Wolf had actual knowledge is unclear from the record, leaving a disputed issue of material fact as to her actual notice. Generally, collateral proceedings to a probate action are governed by section 733.103(2), Florida Statutes (2013)....

...the will was executed as required by law. Committee notes revised. Statutory References § 731.201, Fla. Stat. General definitions. § 731.301, Fla. Stat. Notice. § 732.502, Fla. Stat. Execution of wills. § 732.503, Fla. Stat. Self-proof of will. § 733.103, Fla....

....”). Regardless, we need not decide that issue today. Whether or not Wolf had actual knowledge is unclear from the record, leaving a disputed issue of material fact as to her actual notice. Generally, collateral proceedings to a probate action are governed by section 733.103(2), Florida Statutes (2013)....

...r and in the presence of each other.” § 732.502, Fla. Stat. (2018). The probate of a will signifies that a will was properly executed and witnessed, and that the testator had testamentary capacity when executing the will. § 733.103(2), Fla....

...2d 799 (Fla. 2d DCA 1980)). We have since recognized that “[t]here are 4 simply too many distinctions, both procedural and substantive, between wills and trusts, for the reasoning of DeWitt, and the purpose of section 733.103(2), as it was articulated in DeWitt, to preclude a claim for tortious interference with expectancy.” Martin v....

...Notice. -9-  § 732.502, Fla. Stat. Execution of wills. § 732.503, Fla. Stat. Self-proof of will. § 732.523, Fla. Stat. Self-proof of electronic will. § 732.526, Fla. Stat. Probate. § 733.103, Fla....

...esence of the testator and in the presence of each other.” § 732.502, Fla. Stat. (2018). The probate of a will signifies that a will was properly executed and witnessed, and that the testator had testamentary capacity when executing the will. § 733.103(2), Fla....

...Rabinowitz (Plantation), for appellant. Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet LLP, and Kenneth R. Drake and Brandt Roen, for appellee Eric W. Sulzberger. Before FERNANDEZ, LINDSEY, and MILLER, JJ. PER CURIAM.  Affirmed. See § 733.103(2), Fla....