Dependent relative revocation doctrine + prior wills = no standing to sue

In re Estate of Coukos, 947 So.2d 1290, 32 Fla. L. Weekly D433 (Fla. 2d DCA Feb 09, 2007)

Sometimes the best defense is a good offense.  In the linked-to case, counsel for the personal representative deftly defended against a lawsuit by disinherited heirs by attacking their standing to bring the suit, vs. allowing his client to get dragged into a full-blown will contest. 

Based on the following rationale, the 2d DCA held that the grandchildren and great-grandchildren of the testator lacked standing to petition to revoke his will, in which they were not beneficiaries, given that previous and presumptively valid wills were discovered that, similar to the current will, did not include the petitioners as beneficiaries of the estate. This is a one paragraph opinion, and although unstated, the key concept here is Florida's "dependent relative revocation."

Appellants, the grandchildren and great-grandchildren of Harry L. Coukos, challenge the trial court's dismissal with prejudice of their petition for revocation of probate, in which they challenged Mr. Coukos' 2004 will. Because Appellants lacked standing to challenge the will, we affirm. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005) (“[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.”). However, we do so without prejudice to any right Appellants may have to challenge the trust agreement.

Is it possible for three children completely cut out of their mother's last will, as well as the three wills she previously executed, to somehow end up as sole beneficiaries of her estate? Yes

Wehrheim v. Golden Pond Assisted Living Facility, 2005 WL 1537448 (Fla. 5th DCA July 1, 2005) (Trial Court Reversed)

Most cases provide good examples of mistakes you want to avoid, for example, how mishandling homestead property can lead to unintended consequences (see here) or how to make sure you've served formal notice on a minor to cut off future litigation (see here). Sometimes a case comes along that simply reflects good, creative lawyering. This is one of them.

In this case the Fifth DCA grappled with the following scenario, which seemed ready made for litigation. The decedent executed wills in 1998, 1999, 2000 and 2002. All four wills completely cut out her three children. The 2002 will ended up primarily benefitting the assisted living facility the decedent resided in at the time of her death. This last change was a complete departure from the three previous wills the decedent had executed. When the decedent died her children and the assisted living facility favored under her 2002 will were (surprise!) soon locked in litigation. Orange County Judge Lawrence R. Kirkwood granted a summary judgment motion in favor of the assisted living facility thereby denying petitions filed by the children (1) challenging the decedent's 2002 will and (2) seeking removal of the personal representative. The Fifth DCA reversed the trial court and in the course of its decision shed light on some pretty creative lawyering.

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Dependent Relative Revocation doctrine falls short in attempt to fix an estate plan gone awry

Rosoff v. Harding, 2005 WL 1163101 (Fla. 4th DCA May 18, 2005) (Trial Court Affirmed)

Sometimes a belts-and-suspenders approach to estate planning is not just overkill, it actually ends up doing more harm than good. In this case "Brother" wanted to look out for his sister. So far, so good. So Bother's Will creates a testamentary trust for Sister's life-time benefit and gives her a testamentary power of appointment over the trust corpus. Again, so far so good. But just in case Sister might be victimized, Brother's Will required that any exercise of Sister's power of appointment within 18 months of her death had to be witnessed by a corporate officer of his Corporate Trustee. In theory, this last clause probably sounded like a good idea. In practice, this belts-and-suspenders approach resulted in unintended consequences that the Fourth DCA characterized as "extremely unfortunate" and "unintentional," but beyond the "court's power to correct."

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