DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KAREN WINSLOW,
Appellant,
v.
MALLORY N. DECK, as Personal Representative of
the Estate of MICHAEL S. DECK,
Appellee.
No. 4D16-4312
[August 2, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Charles M. Greene, Judge; L.T. Case Nos. PRC16-2237
and PRC15-0002207.
Brandan J. Pratt and Jennifer L. Fox of Huth, Pratt & Milhauser,
Boca Raton, for appellant.
Rohan Kelley of The Kelley Law Firm, PL, Fort Lauderdale, for
appellee.
KLINGENSMITH, J.
Appellant, Karen Winslow, appeals the trial court’s order dismissing
her counterpetition for administration with prejudice for failure to file a
pleading satisfying the statutory requirements set forth in section
733.212(3), Florida Statutes (2013), within the applicable statute of
limitations. Upon review of the pleadings filed by appellant, we find
appellant’s petition was not time-barred, and that the court erred by not
affording her the opportunity to amend her petition.
The decedent drafted two wills that are at issue in this case. The first
will was drafted in January 1991, leaving his entire estate to his two
adult children. Several years later, the decedent befriended appellant
and they began living together. Thereafter, the decedent drafted a
second will in November 2014 containing language purporting to revoke
all prior wills and leaving his entire estate to appellant. On May 7, 2015,
shortly after the decedent passed away, his daughter Mallory
successfully petitioned the court to admit the first will to probate and to
appoint her as the personal representative of the estate.
On May 27, 2015, appellant filed the second will. Two days later, she
filed four additional documents with the court: 1) an emergency petition
to revoke letters of administration; 2) a counterpetition for administration
with the second will attached thereto; 3) an objection to Mallory’s petition
and an objection to her appointment as personal representative; and 4) a
declaration that the probate proceeding was adversary. Less than a
month later, the court entered an order denying appellant’s emergency
petition without prejudice and upholding the letters of administration
issued for the first will.
More than a year later, Mallory moved to dismiss appellant’s
counterpetition with prejudice, arguing that appellant lacked standing to
contest the first will. In the motion, Mallory asserted that after receiving
notice that the decedent’s estate would be administered in accordance
with the first will, appellant had three months to object to the probate of
the first will. Mallory alleged that although appellant immediately filed
an emergency petition and counterpetition, appellant failed to file any
pleading that specifically requested the first will be revoked. Appellant
responded by arguing that the court should deny the motion to dismiss,
or alternatively, grant the motion but with leave to amend the
counterpetition.
The court ultimately entered a final order dismissing the
counterpetition with prejudice, ruling that neither the emergency petition
nor the counterpetition satisfied the statutory requirements of section
733.212(3) for failure to adequately request relief. This appeal followed.
“A trial court’s order of dismissal is reviewed de novo.” Pasquale v.
Loving, 82 So. 3d 1205, 1207 (Fla. 4th DCA 2012). “In determining
whether to dismiss a complaint for lack of standing, we must confine our
review to the four corners of the complaint, draw all inferences in favor of
the pleader, and accept all well-pled allegations in the complaint as true.”
Gordon v. Kleinman, 120 So. 3d 120, 121 (Fla. 4th DCA 2013) (quoting
Wheeler v. Powers, 972 So. 2d 285, 288 (Fla. 5th DCA 2008)). “[E]xhibits
attached to a complaint ‘are encompassed within the four corners of the
complaint and must be considered therewith’ on a motion to dismiss.”
Chandler v. City Of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA
2014) (quoting Abele v. Sawyer, 750 So. 2d 70, 74 (Fla. 4th DCA 1999));
see also Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall
be considered a part thereof for all purposes.”).
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Pursuant to section 733.212(3), interested parties are barred from
requesting the court to revoke the probate of a will if they fail to object to
the validity of the will within three months of receiving notice:
Any interested person on whom a copy of the notice of
administration is served must object to the validity of the
will, the qualifications of the personal representative, the
venue, or the jurisdiction of the court by filing a petition or
other pleading requesting relief in accordance with the
Florida Probate Rules on or before the date that is 3 months
after the date of service of a copy of the notice of
administration on the objecting person, or those objections
are forever barred.
§ 733.212(3), Fla. Stat. (2013). Section 733.208, Florida Statutes (2002),
provides that after discovering a later will, “any interested person may
petition to revoke the probate of the earlier will or to probate the later will
or codicil.” An “interested person” is “any person who may reasonably be
expected to be affected by the outcome of the particular proceeding
involved.” § 731.201(23), Fla. Stat. (2013).
Florida Probate Rule 5.020(a) provides that “[a]ll technical forms of
pleadings are abolished. No defect of form impairs substantial rights,
and no defect in the statement of jurisdictional facts actually existing
renders any proceeding void.” Moreover, after an interested person
petitions the court to probate a later will or requests to revoke an earlier
will, the proceedings are declared adversarial and the Florida Rules of
Civil Procedure govern the proceedings. See Fla. Prob. R. 5.025(d)(2).
As a general rule, trial courts should not prevent a petitioner from
challenging a will because of a technical defect in the petitioner’s
pleading without allowing for a reasonable opportunity to amend. See
Pasquale, 82 So. 3d at 1208; see also Feather v. Sanko’s Estate, 390 So.
2d 746, 747 (Fla. 5th DCA 1980) (“Although Feather’s pleading might not
have been sufficient to withstand a motion to strike, she should have
been given a reasonable chance to amend or file further pleadings, rather
than suffer what amounts to a default judgment against her claim.”).
The law is clear that trial courts must liberally construe court rules to
allow parties to freely amend their pleadings in the interests of justice:
Florida Rule of Civil Procedure 1.190(a), which governs
amendments to pleadings, “reflect[s] a clear policy that,
absent exceptional circumstances, requests for leave to
amend pleadings should be granted.” Thompson v. Jared
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Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004). “A trial
court’s refusal to allow amendment . . . generally constitutes
an abuse of discretion ‘unless the privilege has been abused,
there is prejudice to the opposing party, or amendment
would be futile.’” PNC Bank, N.A. v. Progressive Emp’r Servs.
II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011) (quoting Fields v.
Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007)).
Fed. Home Loan Mortg. Corp. v. Beekman, 174 So. 3d 472, 474 n.1 (Fla.
4th DCA 2015).
Even though neither the emergency petition nor the counterpetition
were models of clarity, they were nevertheless sufficient to withstand a
motion to dismiss. In the emergency petition, appellant asserted that the
first will was not the last will of the decedent, that she filed a
counterpetition to admit the second will to probate, and that issuing
letters of administration for the first will was improper since the second
will revoked all prior wills. In the counterpetition, appellant attached the
second will, claimed that it was properly executed, and requested an
independent personal representative be appointed. Thus, as it is clear
from the allegations contained in these filings that appellant sought to
revoke the probate of the first will and admit the second will, appellant
satisfied both sections 733.208 and 733.212(3) despite technically failing
to properly request relief. See Fla. Prob. R. 5.020(a).
Further, by finding that appellant’s pleadings were insufficient under
section 733.212(3), the court should have granted the motion to dismiss
but with leave to amend the counterpetition to incorporate a proper
request for relief. See Fla. R. Civ. P. 1.190(a); Samuels v. King Motor Co.
of Fort Lauderdale, 782 So. 2d 489, 501 (Fla. 4th DCA 2001).
Nothing in the record indicates that appellant abused the privilege to
amend, there would have been prejudice to Mallory by permitting leave to
amend, or the amendment would have been futile. See Beekman, 174
So. 3d at 474 n.1. Given that appellant made her first and only request
for leave to amend the counterpetition shortly after Mallory filed her
motion to dismiss, clearly appellant did not abuse the privilege to amend.
Granting the opportunity to amend would not have prejudiced Mallory
because she was aware of the gravamen of appellant’s two petitions.
Indeed, for over a year after the counterpetition was filed, Mallory
participated in discovery, conducted depositions, and even requested
that a handwriting expert inspect the second will for forgery. Allowing
appellant to amend her counterpetition to include a proper request for
relief, therefore, would have only confirmed what Mallory already knew —
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that appellant was hoping to revoke the probate for the first will, and
instead admit the second will. Finally, appellant’s amendment to her
counterpetition would not have not been futile. As the sole beneficiary
named in the second will, appellant was unquestionably an interested
person in the decedent’s estate who had a right to challenge the probate
administration of the decedent’s first will. See Feather, 390 So. 2d at
747.
Accordingly, we reverse the trial court’s dismissal of appellant’s
counterpetition, and remand with instructions for the court to grant
appellant’s request for leave to amend her counterpetition to incorporate
a proper request for relief. Because appellant filed the original
counterpetition within three months after receiving notice of the
administration of the decedent’s estate, she is not time-barred by section
733.212(3) since her amended counterpetition will relate back to the date
she filed the original. See Fla. R. Civ. P. 1.190(c) (“When the claim or
defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment shall relate back to the date of the
original pleading.”).
Reversed and Remanded.
CIKLIN, J., and METZGER, ELIZABETH A., Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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