5D04-2111 Cason v. Hammock

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-2111

Case Date: 06/20/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

JOHN CASON, O/B/O SARAH ELIZABETH SAFERIGHT, ETC., Appellant, v. DARLENE HAMMOCK, PERSONAL REPRESENTATIVE, ETC., Appellee. ________________________________/ Opinion filed June 24, 2005 Appeal from the Circuit Court for Citrus County, Richard Howard, Judge. Kevin K. Dixon of Kevin K. Dixon, P.A., Inverness, for Appellant. Eugene A. Wiechens and Russell W. LaPeer, of Landt, Wiechens, LaPeer & Ayres, Ocala, for Appellee. Case No. 5D04-2111

SAWAYA, C.J. John Cason, on behalf of his granddaughter, Sarah Saferight, appeals the order denying his Amended Petition for Removal of Personal Representative and the order denying his Petition for Revocation of Probate. These orders emanate from probate proceedings regarding the estate of the decedent, Vivian Saferight, who is Sarah's paternal grandmother. The issues we must resolve are: 1) whether John Cason,

Sarah's maternal grandfather, had standing to seek removal of the personal representative; and 2) whether the petitions were timely filed. Before we address these issues we will first discuss the factual and procedural background of the instant case. Factual And Procedural Background When Cason discovered that three years prior to her death, Vivian had conveyed her waterfront home to Darlene Hammock, who had provided various services to Vivian the last few years of her life, Cason filed a complaint to set aside the deed on the grounds that it had been procured by Hammock through the use of duress and undue influence or coercion. When Cason discovered that probate proceedings had

commenced and that Vivian had left the bulk of her estate to Hammock rather than to Sarah, her only remaining relative, Cason petitioned for revocation of probate on the grounds that Vivian had not possessed the testamentary capacity to execute the will dated May 6, 1998, and that the will was the result of Hammock's undue influence or coercion. Both proceedings were consolidated, and Cason filed a petition to remove Hammock as the personal representative of Vivian's estate, asserting that a conflict of interest arose based on Hammock's defense of the action to set aside the deed and her duties as personal representative of Vivian's estate. petitions. To support the trial court's rulings, Hammock asserts two arguments that more specifically frame the issues previously discussed: 1) Cason lacked standing to seek removal of Hammock as personal representative because Sarah, as a specific devisee, was assured of receiving her specific bequest of five thousand dollars from the estate, which, according to Hammock, had sufficient funds to pay that amount; and 2) Sarah The trial court denied both

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was properly served with formal notice of the Notice of Administration pursuant to Florida Probate Rule 5.040(a)(3)(A)(iv), and the petitions were not timely filed because they were not filed within three months of the date of service. We will discuss each issue in the order presented.

Standing An "interested person" may institute proceedings to remove a personal representative. Fla. Prob. R. 5.440(a). The definition of "interested person" is found in section 731.201(21), Florida Statutes (2003), which provides in pertinent part: "Interested person" means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. . . . The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings. Hammock contends, and the trial court agreed, that Cason lacks standing because Sarah is not an interested person for the reason that there are sufficient funds in the estate to pay Sarah's specific devise of five thousand dollars and, therefore, under section 731.201(21), she will receive complete distribution. We disagree.

Section 731.201(21) specifically requires that the beneficiary receive complete distribution and "receive" means that the beneficiary has actually taken possession of the devise under the decedent's will. The fact that the estate has sufficient funds to pay the devise in full is not the equivalent of receipt of the devise by the beneficiary. Until the beneficiary actually receives the devise, he or she "may reasonably be expected to be affected by the outcome of the particular proceeding involved."

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