DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIAM GUNDLACH, III, individually and as Co-Personal
Representative of the ESTATE OF WILLIAM GUNDLACH,
Appellant,
v.
JON ERIK GUNDLACH, as Co-Personal Representative of the
ESTATE OF WILLIAM GUNDLACH and Trustee of WG III TRUST,
WILLIAM GUNDLACH IV, MARY CATHERINE GUNDLACH,
SARAH ELIZABETH GUNDLACH LAMBOUSY,
CHRISTOPHER CALLAWAY GUNDLACH, and
JOHN MACGREGOR GUNDLACH,
Appellees.
No. 4D21-930
[May 25, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No.
PRC190005372.
Laura Bourne Burkhalter of Laura Bourne Burkhalter, P.A., Fort
Lauderdale, for appellant.
Scott A. Weiss of Scott A. Weiss, P.A., Fort Lauderdale, for appellees.
CONNER, C.J.
Appellant, William Gundlach III, individually and as Co-Personal
Representative of the Estate of William Gundlach, appeals the trial court’s
order dismissing with prejudice as untimely his amended petition for
construction and declaration of rights under a testamentary trust.
Additionally, Appellant seeks an appellate determination that certain
provisions of the testamentary trust are contrary to public policy pursuant
to section 736.0404, Florida Statutes (2021). Because we determine that
Appellant’s amended petition did not amount to a challenge of the validity
of the will within the meaning of section 733.212(3), Florida Statutes
(2021), we reverse and remand for further proceedings. We decline to
address whether provisions of the testamentary trust violate public policy
or section 736.0404, because the issue was not ruled upon by the probate
court and is premature for appellate review.
Background
The decedent, William Gundlach, Jr., was an attorney. This appeal
concerns the probate of his last will and testament. The will names his
two sons, Appellant and Appellee, Jon Erik Gundlach, as co-personal
representatives of his estate. The will also names Jon as the trustee of a
testamentary trust. Appellant’s five children are beneficiaries under the
testamentary trust, and they are the remaining appellees in this case. The
grandchildren appellees filed an answer brief in this appeal and Jon filed
a notice of joinder to the grandchildren’s answer brief. All the appellees
will collectively be referred to as “Appellees.”
Article VIII of the will recites that the residuary estate be divided into
two equal parts, with one part devised to Jon outright, and the other part
devised to the “WGIII Trust” (“the Trust”). The will explained that initially
the intent was to benefit both sons equally by leaving them both portions
of the estate outright on the assumption both sons would leave their
inheritance to their wives and biological children. That changed when
Appellant’s first wife and mother of Appellant’s five children died. The will
explained that Appellant then married a woman with two children from a
previous marriage, after signing an antenuptial agreement which said that
Appellant could give his second wife any assets he may acquire. The will
expressed the decedent’s fear that some or all the assets initially devised
to the Appellant could be transferred, gifted, or devised by the Appellant
to his second wife or that she might have a claim to them by virtue of her
marriage. The will expressed the decedent’s additional fear that
Appellant’s second marriage could potentially deprive Appellant’s children
of the decedent’s assets, nullifying the decedent’s intent that the assets
would ultimately go to Appellant’s five children. To address those fears,
the will placed all the assets which Appellant would have received outright
in a trust, so that Appellant would never have any direct or beneficial
ownership interest in them whatsoever.
The will provided that the trustee of the Trust would be Jon, and that
the term of the Trust would be for the life of Appellant. The stated purpose
of the Trust is to provide, out of Trust income, full back up for all of
Appellant’s medical needs during his lifetime, with the balance of the
income paid and divided among Appellant’s children during Appellant’s
life, and that upon Appellant’s death, the Trust would terminate, and all
principal and undistributed income would be paid to Appellant’s children.
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Notwithstanding the above provisions, the will stated that if at the time
of decedent’s death or any time thereafter, Appellant is not married
because of divorce, death, or otherwise, then the Trust shall not be
established, and if established, it shall terminate, and all the assets which
would have been placed in the Trust would be delivered outright to
Appellant, provided Appellant first executed an irrevocable agreement
between himself and his children agreeing that all assets he received from
the estate will be conveyed only to his biological children and no others.
The will stated multiple times the decedent’s intent that one-half of his
estate would ultimately go to Appellant’s biological children.
After the decedent passed away, Appellant and Jon filed a petition for
administration requesting the will be admitted to probate and that they be
appointed co-personal representatives. The will was admitted to probate
and Appellant and Jon were appointed co-personal representatives.
Subsequently, Appellant filed his “Amended Petition for Construction
and Declaration of Rights” seeking (1) a determination as to the validity of
all or part of the testamentary trust; (2) construction of the testamentary
trust; and (3) a declaration of rights under the testamentary trust
pursuant to section 736.0201(4)(a), (e)–(f),” Florida Statutes (2021).1
Appellant asserted that the condition that he no longer be married in order
to receive an outright bequest was unlawful and contrary to public policy.
In Count 1, Appellant alleged he was in doubt as to whether the condition
regarding his marriage can be given legal effect and requested a
determination as to the validity of the condition imposed in the Trust that
1 Section 736.0201(4)(a), (e)–(f) provides:
(4) A judicial proceeding involving a trust may relate to the validity,
administration, or distribution of a trust, including proceedings to:
(a) Determine the validity of all or part of a trust;
....
(e) Ascertain beneficiaries; determine any question arising in the
administration or distribution of any trust, including questions of
construction of trust instruments; instruct trustees; and determine the
existence or nonexistence of any immunity, power, privilege, duty, or
right;
(f) Obtain a declaration of rights; . . . .
§ 736.0201(4)(a), (e)–(f), Fla. Stat. (2021).
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for him to inherit a bequest outright, his current marriage must terminate.
He further alleged that substantial legal and financial consequences
depend upon the judicial declaration of rights and interest. In Count 2,
Appellant sought a determination of the validity of all or part of the Trust
under section 736.0201(4)(a), relating to the same conditions discussed in
Count 1.
Appellees moved to strike Appellant’s amended petition arguing that
where Appellant’s amended petition challenged the validity of the will, the
challenge was untimely pursuant to section 733.212(3) because it was not
filed within three months of his receipt of the notice of administration.
Appellees argued that while the amended petition included reference to
construction of provisions of the Trust, the crux of the petition sought to
declare specific provisions of the will invalid. Appellees argued that
Appellant’s attempt to challenge the validity of provisions of the will was
therefore untimely.
At the hearing on the motion, Appellant denied that the amended
petition sought to attack the validity of the will, and argued that, instead,
the amended petition sought construction and a declaration of whether
certain will provisions should be given legal effect, such that the timeliness
of the petition was not subject to the limitations of section 733.212(3).
However, the probate court granted Appellees’ motion and dismissed
Appellant’s amended petition as untimely pursuant to section 733.212(3).
Following the denial of his motion for rehearing, Appellant gave notice of
appeal.
Appellate Analysis
On appeal, Appellant contends the lower court erroneously treated his
construction or declaration action as a will contest and held Appellant to
the time limitation for an interested person to object to the validity of a
will, as set forth in section 733.212(3). We agree.
Our recent decision in Tendler v. Johnson, 332 So. 3d 521 (Fla. 4th DCA
2021), is instructive. In Tendler, the decedent was the primary beneficiary
of a separate trust created by his grandfather. Id. at 522–23. A provision
in that trust granted the decedent a limited power of appointment over the
trust’s assets which could be exercised in favor of anyone except the
decedent himself, his creditors, or his estate. Id. The decedent’s will
attempted to exercise the limited power of appointment contained in the
separate trust. Id. After the decedent’s will was admitted into probate,
the decedent’s brother did not file any objections to the validity of the will
within the three-month limitation. Id. at 523. Subsequently, the personal
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representatives of the will filed a petition for instruction in connection with
the trustee’s refusal to transfer all assets from the trust pursuant to the
decedent’s exercise of the special power of appointment in the will. Id.
Upon being served formal notice of the petition for instruction, the
decedent’s brother asserted that the decedent’s exercise of the limited
power of appointment in his will was not effective because it attempted to
appoint the assets in such a way that those assets could be used to pay
the creditors of the decedent’s estate, contrary to the provisions of the
trust. Id. The personal representatives argued the brother’s claim was
untimely under section 733.212(3). Ultimately, the trial court ruled that
the brother’s challenge to the validity of the will was time-barred. Id. at
524.
On appeal, however, we concluded that the brother’s claim “was not a
challenge to the validity of the will within the meaning of section
733.212(3).” Id. In reaching this conclusion, we explained:
Florida requires strict compliance with its statutory provisions
in the execution of wills. See § 732.502, Florida Statutes
(2018). The “will must be in writing,” “[t]he testator must sign
the will at the end,” the testator must sign “in the presence of
at least two attesting witnesses,” and the “witnesses must sign
the will in the presence 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. Stat.
(2018) (“[T]he probate of a will in Florida shall be conclusive
of its due execution; that it was executed by a competent
testator, free of fraud, duress, mistake, and undue influence;
and that the will was unrevoked on the testator’s death.”).
The use of the word “validity” in chapter 733 pertains to the
compliance with the technical requirements of execution—
signatures and witnesses—and to the testamentary capacity
of the testator—the required factors for a will to be probated.
Section 733.107, Florida Statutes (2018), provides that “[i]n
[a] proceeding[ ] contesting the validity of a will, the burden
shall be upon the proponent of the will to establish prima
facie its formal execution and attestation.” § 733.107(1),
Fla. Stat. (2018) (emphasis added). “Thereafter, the
contestant shall have the burden of establishing the grounds
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on which the probate of the will is opposed or revocation
is sought.” Id. (emphasis added).
Consistent with section 733.107, section 733.212(3), Florida
Statutes (2018), provides that
[a]ny interested person on whom a copy of the
notice of administration is served must object to
the validity of the will, 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.
(emphasis added). Section 733.212(3)’s use of the term
“validity of the will” relates back to the use of the same term
in section 733.107, so it pertains to the admission of a will to
probate or a revocation of probate. Here, Tendler challenges
not the validity of the will but the effectiveness of the
Decedent’s attempted exercise of the Rison Trust’s limited
power of appointment in article 4 of the will. Tendler’s
challenge is outside of the three specific issues covered by
section 733.212(3). That statute speaks of the “validity of the
will,” not of the “validity of the will or a part thereof.”
Id. at 524–25 (alterations in original). Thus, we reasoned that both the
brother and the personal representatives essentially sought to have the
probate court construe a provision of the will. Id. at 525. We explained:
A petition to construe a will is premature before the will has
been admitted to probate. § 733.213, Fla. Stat. (2018) (“A will
may not be construed until it has been admitted to probate.”);
In re Est. of Dahl, 125 So. 2d 332, 335 (Fla. 2d DCA 1960)
(explaining that “[n]o petition or complaint for construction
may be maintained in any court until the will has first been
probated”); Cody v. Cody, 127 So. 3d 753, 756 (Fla. 1st DCA
2013) (holding that the order construing a will to determine
beneficiaries was premature as “the probate court has not
actually admitted the will to probate”); First Nat’l Bank of
Miami v. Risolia, 200 So. 2d 260, 260 (Fla. 3d DCA 1967)
(finding that “[t]he circuit court has jurisdiction to construe
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the provisions of a will so long as the will has first been
probated and the circuit court was the court first obtaining
jurisdiction for construction”).
Id. (alterations in original). We acknowledged that the brother’s “objection
to the effectiveness of the [d]ecedent’s attempted exercise of the [trust’s]
power of appointment required the probate court to construe” that
provision of the will in conjunction with the trust, but that “[t]his was not
a challenge to the ‘validity of the will’ within the meaning of section
733.212(3).” Id.
Applying our analysis in Tendler, Appellant’s petition in this case
likewise did not challenge the “validity of the will” within the meaning of
section 733.212(3). As discussed above, Appellant’s petition sought (1) a
determination as to the validity of all or part of the testamentary trust; (2)
construction of the testamentary trust; and (3) a declaration of rights
under the testamentary trust pursuant to section 736.0201(4)(a), (e)–(f),
Florida Statutes (2021). Appellant’s petition challenged the effectiveness
of the provision of the will concerning the condition regarding his marriage.
However, pursuant to Tendler, such a challenge in Appellant’s petition to
“all or part of the testamentary trust” created by the will did not amount
to a challenge to the “validity of the will” as used in section 733.212(3),
which Tendler explains refers to the technical requirements for a will to be
probated.
As such, guided by the analysis in Tendler, we hold that section
733.212(3) does not bar Appellant’s petition. Accordingly, the probate
court erred in dismissing Appellant’s petition as untimely under section
733.212(3). We reverse the order granting Appellees’ motion and
dismissing Appellant’s amended petition with prejudice, and remand for
further proceedings.
Reversed and remanded for further proceedings.
GERBER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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