5D07-494 Wheeler v. Powers

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-494

Case Date: 01/14/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

KENNETH B. WHEELER, Appellant, v. ALBERT POWERS, ETC., ET AL., Appellee. ________________________________/ Opinion filed January 18, 2008 Appeal from the Circuit Court for Volusia County, C. McFerrin Smith, III, Judge. Alex C. Costopoulos and Alexander S. Douglas, II of Pohl & Short, P.A., Winter Park, for Appellant. David A. Burt and Donald E. Hawkins of Hawkins, Hawkins & Burt, LLP, Daytona Beach, for Appellee. Case No. 5D07-494

PERRY, B., Associate Judge. Kenneth B. Wheeler appeals the trial court's order dismissing his probate revocation petition for lack of standing in the probate of the estate of Dorothy L. Powers. Because we conclude that Mr. Wheeler has standing as the alternate personal representative under a prior Will, we reverse and remand for further proceedings.

In 2000, Dorothy L. Powers and her husband, Albert Powers, retained Kenneth B. Wheeler, an estates and trust attorney, to prepare estate planning documents. Dorothy requested in her initial Will that Mr. Wheeler act as first successor trustee, personal representative, Attorney-in-Fact, and, if requested to do so by Merrill Lynch Trust Company, special trustee in her revocable trust, last Will and Testament, and durable power of attorney. On December 13, 2001, Dorothy had Mr. Wheeler prepare an amendment to her Will wherein she disinherited her stepson, Brian Powers, and named Albert as her personal representative and Mr. Wheeler as her alternate personal representative. Dorothy and Albert were named co-trustees of the revocable trust, and upon Dorothy's death, Mr. Wheeler and Albert were to serve as co-trustees.1 On December 20, 2004, Dorothy created several new estate planning documents through a different attorney. These included a new Will and a new durable power of attorney naming Albert as her Attorney-in-Fact and her previously disinherited stepson, Brian, as her alternate Attorney-in-Fact. She also signed an amendment to her

revocable trust that named Albert as trustee, and Brian and Wachovia Bank as alternate co-trustees. On January 27, 2005, Dorothy signed another Will naming Albert as her personal representative and Brian as her alternate personal representative. Dorothy was

involuntarily hospitalized approximately two weeks later after becoming disoriented,

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The trust was the beneficiary of Dorothy's 2001 Will and her subsequent 2005

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paranoid and suicidal. She was diagnosed with late stage Alzheimer's disease, and passed away on October 11, 2005. On February 24, 2005, Albert resigned as Dorothy's Attorney-in-Fact due to failing health and Brian became her Attorney-in-Fact. On October 19, 2005, Mr. Wheeler filed a Caveat by Interested Person. The caveat stated that Mr. Wheeler's interest was "that of potential sole beneficiary of the estate of Dorothy L. Powers" and "as co-Trustee of the Dorothy L. Powers Revocable Trust under agreement dated June 8, 2000, amended and restated on January 5, 2001, and further amended and restated on December 13, 2001." On May 2, 2006, Albert petitioned for probate of Dorothy's January 2005 Will. The Will w as subsequently admitted to probate and Albert was appointed personal representative. The Clerk of Court failed to timely notify Mr. Wheeler as a caveator that administration had commenced. On June 29, 2006, Mr. Wheeler filed his counter petitions to the administration of the January 2005 Will. Mr. Wheeler's counter petitions alleged: (1) the 2001 estate planning documents were Dorothy's true testamentary intent and that she either lacked the testamentary capacity to execute the December 2004 and January 2005 estate planning documents, or that those documents were procured by Brian Power's undue influence; (2) Mr. Wheeler is an interested party as he was named as alternate personal representative and co-trustee in Dorothy's prior valid Will; and (3) Dorothy's Will was improperly admitted to probate and letters of administration issued in error because timely notice was not provided to a caveator.

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As a result, Mr. Wheeler sought declaratory relief to set aside the December 2004 and January 2005 estate planning documents and probate revocation for failure to provide formal notice to a caveator. In addition, he contended that Albert was not

mentally or physically capable of fulfilling his duties as personal representative and cotrustee, and, therefore, Mr. Wheeler should be the primary personal representative and trustee under the 2001 Will. On December 8, 2006, the trial court entered an Order of Dismissal for Lack of Standing on the basis that Mr. Wheeler's status as an alternate personal representative under a prior Will and a co-successor trustee under a prior trust did not bestow standing, that he was not an heir and did not represent an heir, and that his desire to see the testator's intent be carried out did not confer standing on an otherwise disinterested person. Mr. Wheeler timely appealed this order. The question on appeal is whether an alternate personal representative under a prior Will and a co-successor trustee under a prior trust has standing to contest a Will. Mr. Wheeler's standing as an alternate personal representative turns on whether he is an "interested person." The Probate Code defines "interested person" as follows: (21) "Interested person" means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent's estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor's estate. . . . The meaning, as it relates to particular persons, may vary from time to time and must be determined

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according to the particular purpose of, and matter involved in, any proceedings.

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