5D08-2109 Price v. Abate

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-2109

Case Date: 03/02/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

FRAN PRICE, Appellant, v. KATHLEEN L. ABATE, DAVID W. FLANIGAN, MICHAEL D. FLANIGAN, PATRICIA L. FLANIGAN, PATRICK J. FLANIGAN, WILLIAM J. FLANIGAN, CAROLE A. LATKOVIC, and SHANNON ODDERA. Appellees. _________________________________/ Opinion filed March 6, 2009 Appeal from the Circuit Court for Seminole County, Kenneth R. Lester, Jr., Judge. Alan B.Taylor of Litchford & Christopher, Orlando, and G. Charles Wohlust of G. Charles Wohlust, P.L.C., Winter Park, for Appellant. Richard L. Pearse, Jr. of Richard L. Pearse, Jr., P.A., Clearwater, for Appellees. PALMER, C.J., In this probate proceeding, Fran Price appeals the final summary judgment entered by the trial court in favor of the appellees on Price's petition for the administration of a lost will. Finding no genuine dispute as to any material issue of fact, we affirm. Case No. 5D08-2109 CORRECTED OPINION

On April 21, 2005, Price filed a petition seeking the administration of the estate of Thomas Flanigan. The petition explained that Flanigan died on February 15, 2005, and that Price was the personal representative of Flanigan's "undiscovered will". The petition averred that "[t]he original of the will which is known to exist as of January 2005 has not been found and may not exist at this time". The petition requested that the trial court admit Flanigan's estate to probate and that Price be appointed as the personal representative of the estate. After the trial court issued letters of administration to Price, Flanigan's eight intestate heirs filed a petition to determine the beneficiaries of Flanigan's estate. In response, Price filed a petition to establish a lost will. Price's petition alleged that Flanigan had executed a valid will but that it had not been found. Upon review of cross-motions for summary judgment, the trial court issued a final order determining that Flanigan had died intestate. Of importance to this appeal, the trial court determined that there were no disputed issues of material fact and that, as a matter of law, Flanigan died intestate because the lost will which Price was seeking to enforce was invalid because it had not been executed with the formalities required by section 732.502 of the Florida Statutes (2005). This appeal timely followed. An essential prerequisite to establishing and probating a lost will is proof that the lost document was executed in accordance with the formalities set forth in section 732.502 of the Florida Statutes. A testator must strictly comply with the requirements of the statute in order to create a valid will. Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002). Section 732.502 of the Florida Statutes provides that, among other things, it is essential to the validity of a will for the witnesses to sign in the testator's and each

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other's presence. Simpson v. Williamson, 611 So. 2d 544, 546 (Fla. 5th DCA 1992). The proponent of a will bears the burden of establishing prima facie its formal execution and attestation. See

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