Creditor strikes out again: Florida Probate Rules do not provide for "vacatur" of mistaken orders

Interim Healthcare of Northwest Florida, Inc. v. Estate of Ries, 2005 WL 2219224 (Fla. 4th DCA September 14, 2005) (Trial Court Affirmed)

Two public-policy priorities play themselves out every time a creditor seeks to satisfy its claim against a probate estate: (1) on the one hand, there is the public policy favoring expeditious and low-cost completion of the probate administration process; (2) on the other hand, a creditor's constitutionally protected due process rights must respected. As this case makes clear, procedural safety nets available to litigants in general civil litigation (think due process) do not always apply in the probate context. In general civil litigation Rule 1.540 of the Florida Rules of Civil Procedure provides for the "vacatur" of mistaken orders. As the creditor in this case learned, Rule 1.540 runs head on against the public policy favoring the expeditious and low-cost completion of probate proceedings. As such, as the Fourth District Court of Appeal makes clear in Footnote 1 to this opinion, Rule 1.540 simply does not apply in the probate context.

FN1. The Florida Probate Rules do not contain a provision for vacatur of orders--and this includes those striking claims as untimely--made final by the lapse of the time for appeal. The Rules of Civil Procedure no longer apply in probate except as specified in the probate rules. See Fla. Prob. R. 5.010. At one time a statute applied the civil rules to adversary proceedings in probate, but that statute was repealed in 2002. See Ch.2001-226, § 8, Laws of Fla. Thus, even though rule 1.540 might logically seem to support an attempt to vacate an earlier probate order made final by the lapse of the time for appeal, in this case that rule has no application. See In re Estate of Clibbon, 735 So.2d 487 (Fla. 4th DCA 1998).
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