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CASENQ SC1
LoWR TRIBUNALCAsE NOls. 3D4
DAWNROBSTS,
Petitioner,
v.
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TERRY GLENN,
Respondent
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TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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STATEMENT OF THE CASE AND OF THE FACTS
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SUMMARY OF ARGUMENT
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ARGUMENT
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I. THE THIRD DISTRICT DECISION MISAPPLIED CORBIN AND LINES AND
EXPRESSLY AND DIRECTLY CONFLICTED WITH THE DECISIONS IN
THOSE CASES BECAUSE
(1) THE THIRD DISTRICT TREATED THE RESIDUARY
DEVISE IN ARTICLE THIRD TO PERSONAL REPRESENTATIVE
GLENN, "WITH FULL CONFIDENCE THAT HE WILL HONOR
FRENCH'S ORAL REQUESTS TO BENEFIT HER FRIENDS," AS
PRECATORY,
(2) THE THIRD DISTRICT DECLINED TO CONSIDER
IMMEDIATELY ADJACENT WORDING IN ARTICLE THIRD,
REFERRING TO THOSE REQUESTS AS MANDATORY
DIRECTIVES,ANDINSTEADSELECTIVELYCONSIDEREDAND
MISCONSTRUED WORDING IN ARTICLE FIFTH, AND
(3) THE THIRD DISTRICT FAILED TO INVALIDATE
ARTICLE THIRD'S RESIDUARY DEVISE AS AN ATTEMPTED
ORAL DEVISE
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II. THE COURT SHOULD EXERCISE ITS DISCRETION IN FAVOR OF
ACCEPTING THE PETITION FOR REVIEW
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CONCLUSION
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CERTIFICATE OF SERVICE
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CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES
Estate ofCorbin v. Sherman, 645 So.2d 39 (Fla. 1" DCA 1994)
Glenn v. Roberts, 95 So.3d 271 (Fla. 3d DCA 2012)
passim
Jaimes v. State, 51 So.3d 445 (Fla. 2010)
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Lines v. Darden, 5 Fla. 51 (1853)
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3, 4, 6, 7, 8
Art. V, § 3(b)(3), Fla. Const.
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3, 4, 5, 6, 7, 8
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STATEMENT OF THE CASE AND OF THE FACTS
The Third District decision, Glenn v. Roberts, 95 So.3d 271 (Fla. 3d DCA
2012), for which review is sought, concerns the Last Will and Testament executed by
Barbara Annette French (the "Will"). The first sentence of the Third Article of that
Will provided:
THIRD
I hereby give, devise and bequeath all ofthe rest, residue and remainder
ofmy estate, both real and personal, ofwhatsoever kind and nature, and
wheresoever the same may be situate unto my friend, TERRY GLENN,
having full confidence he will honor all requests made to him by me
prior to my death as to friends whom I desire he benefit.
Glenn, 95 So.3d at 272. The Third District described the second sentence of that
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Article as follows:
"[T]he second sentence ofthe Third Article ... provided that in the event
Glenn predeceased French, or did not survive distribution of her estate,
the residuary estate was devised to Glenn's wife, Pearl, 'having equal
confidence that she will likewise follow my directives expressed to her
and her husband prior to my death."'
Id., 95 So.3d at 273 n. 1. However, the Third District noted that, "because Glenn
survived French, we do not address Roberts's arguments concerning the second
sentence of the Third Article .." Id. The Will also contained the following Fifth and
final Article:
In the preparation of this, my Last Will and Testament, I have carefully
and thoughtfully considered each member of my family and all of my
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friends, and have not unintentionally omitted any of them, as it is my
desire, and I so direct, that only those beneficiaries named herein, share
as beneficiary of my probate estate.
Id, 95 So.3d at 272. French died on July 7, 2010. Id.
The Third District summarized the probate-court proceedings relating to
French's Estate as follows:
Glenn, who was named as personal representative, commenced probate
proceedings in the circuit court.[i] Shortly thereafter, Roberts filed a
petition seeking to set aside the Will. Roberts claimed that she was
French's only grandchild, and the rightful heir to French's estate. Relying
upon Estate ofCorbin v. Sherman, 645 So.2d 39 (Fla. 1st DCA 1994),
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she argued that the first sentence ofthe Third Article, which devised the
residuary estate to Glenn, was ineffective as a testamentary disposition
because it was an oral instruction and did not meet the statutory
requirement that a will be in writing. See §§ 731.201(36), 732.502, Fla.
Stat. (2002). Roberts asserted that, as a result, the Will was invalid and
all of French's property should be distributed in accordance with
Florida's law of intestate succession.
Roberts subsequently filed a motion for judgment on the
pleadings. After a hearing, the trial court granted Roberts' motion for
judgment on the pleadings and ordered French's residuary property to be
distributed pursuant to Florida's intestacy statutes. This appeal ensued.
Glenn, 95 So.3d at 272.
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The Third District reversed that judgment on the pleadings and, in its place,
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directed that, on remand, judgment should be entered "finding that Glenn is the sole
beneficiary under French's Will." Id., 95 So.3d at 274. The Third District reasoned:
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Here, unlike in Corbin, the language in French's Will is merely
precatory, and not mandatory. ... In Corbin, the language at issue was
clearly mandatory as it referenced oral instructions for the distribution
of property ("to dispose of as she has been instructed"). Because it
mandated the distribution of the decedent's estate pursuant to oral
instructions, it constituted an unauthorized oral will. In contrast, the
language here does not mandate Glenn to distribute the residuary estate
according to instructions from French, but rather, simply expresses
French's hope that Glenn will honor all of her "requests." In other
words, the unambiguous language ofthe Third Article devises the entire
residuary estate to Glenn, who then has the discretion to honor French's
requests. Cf Lines v. Darden, 5 Fla. 51 (1853) ("The words 'will and
desire,' are not necessarily mandatory, nor does the question turn upon
their grammatical construction.... Their import and signification depends
not so much as to whom they are addressed, as the intention ofthe party
using them....");
The Fifth Article establishes that: (1) French disinherited her
family, among whom Roberts claims to be a member, and did not
unintentionally omit them; and (2) the only beneficiaries of French's
estate are those named in the Will, i.e., Glenn and his wife Pearl.
Accordingly...Glenn is the sole beneficiary under French's Will.
Id., 95 So.2d at 273-274.
Petitioner Roberts timely filed a Notice to Invoke the Jurisdiction ofthis Court
to review the Third District's decision.
SUMMARY OF ARGUMENT
The Third District decision cites and purports to apply the decisions in both
Estate ofCorbin v. Sherman, 645 So.2d 39 (Fla. 1" DCA 1994) and Lines v. Darden,
5 Fla. 51 (1853). However, in doing so, the Third District decision expressly and
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directly conflicts with, and misapplied those decisions.
Contrary to Lines' construction of a request directed to an executor as
imperative, the Third District treated the disposition of the residue of the Estate, in
the Third Article of her Will, to personal representative Glenn, "with full confidence
that he will honor french's oral requests to benefit her friends," as precatory.
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Contrary to Lines' further requirement that, in applying that rule of
construction, the entire text of the will must be considered, the Third District
expressly declined to consider immediately adjacent wording in the second sentence
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ofthe Third Article ofFrench's Will. That wording interchangeably referred to those
requests to Glenn as mandatory directives.
In further violation of Lines' requirement that the entire text must be
considered, the Third District selectively considered and inconsistently construed the
wording in Article Fifth of the Will as excluding the friends named in the Third
Article's requests/directives as beneficiaries.
Based on the Third District's construction of the requests/directives in the
Third Article ofthe French's Will as "precatory," the Third District declined to apply
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Corbin's holding, invaliding a testamentary devise which required compliance with
the testator's oral instructions.
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imperative, the Third District treated the disposition of the residue of the Estate, in
the Third Article of her Will, to personal representative Glenn, "with full confidence
that he will honor french's oral requests to benefit her friends," as precatory.
Contrary to Lines' further requirement that, in applying that rule of
construction, the entire text of the will must be considered, the Third District
expressly declined to consider immediately adjacent wording in the second sentence
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ofthe Third Article ofFrench's Will. That wording interchangeably referred to those
requests to Glenn as mandatory directives.
In further violation of Lines' requirement that the entire text must be
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considered, the Third District selectively considered and inconsistently construed the
wording in Article Fifth of the Will as excluding the friends named in the Third
Article's requests/directives as beneficiaries.
Based on the Third District's construction of the requests/directives in the
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Third Article ofthe French's Will as "precatory," the Third District declined to apply
Corbin's holding, invaliding a testamentary devise which required compliance with
the testator's oral instructions.
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ARGUMENT
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I. THE THIRD DISTRICT DECISION MISAPPLIED CORBIN AND
LINESAND EXPRESSLYAND DIRECTLY CONFLICTED WITH THE
DECISIONS IN THOSE CASES BECAUSE
(1) THE THIRD DISTRICT TREATED THE RESIDUARY
DEVISE IN ARTICLE THIRD TO PERSONAL REPRESENTATIVE GLENN, "WITH FULL CONFIDENCE THAT HE WILL
HONOR FRENCH'S ORAL REQUESTS TO BENEFIT HER
FRIENDS," AS PRECATORY,
(2) THE THIRD DISTRICT DECLINED TO CONSIDER
IMMEDIATELY ADJACENT WORDING IN ARTICLE THIRD,
REFERRING TO THOSE REQUESTS AS MANDATORY
DIRECTIVES, AND INSTEAD SELECTIVELY CONSIDERED
AND MISCONSTRUED WORDING IN ARTICLE FIFTH, AND
(3) THE THIRD DISTRICT FAILED TO INVALIDATE
ARTICLE THIRD'S RESIDUARYDEVISE AS AN ATTEMPTED
ORAL DEVISE
In citing, but seeking to distinguish, Estate ofCorbin v. Sherman, 645 So.2d
39 (Fla. 1" DCA 1994), the Third District decision misapplied, and expressly and
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directly conflicted with, Corbin. The will provision at issue in Corbin was as follows:
"FIRST: I give, bequeath and devise all ofmy estate ofwhatsoever kind
and nature and wherever located to BETTY GUY SHERMAN to
dispose of as she has been instructed to do by me."
Corbin, 645 So.2d at 42, held:
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The will clearly attempts to devise the decedent's property to Sherman
for Sherman to distribute according to oral instructions from the
decedent. Florida does not recognize oral wills. §§ 731.201(35);
732.502, Fla. Stat. (1989). Although the Florida Probate Code does
permit incorporation ofcertain writings by reference in the will, there is
no provision for incorporation of oral instructions or communications.
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See §§ 732.512; 732.515, Fla. Stat. (1989). We conclude that the
provision of decedent's will at issue was ineffective as a testamentary
disposition. Because the will failed to effectively devise the property to
designated beneficiaries, intestacy resulted. § 732.101, Fla. Stat. (1989).
The Third District, in the case at bar, sought to distinguish the provision of the will
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at issue in Corbin by construing the testator's "oral instructions"in Corbin as "clearly
mandatory," and by construing the "requests" in the first sentence ofFrench's Article
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Third as being rather "precatory." Glenn, 95 So.2d at 273.
However, that precatory construction does not comport with, misapplies, and
expressly and directly conflicts with Lines v. Darden, 5 Fla. 51 (1853), which the
Third District opinion cited and attempted to apply. Lines set out the following rule
of construction:
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The words "will and desire," when addressed to an executor, are as
contended, imperative, and it is his duty to carry out the wishes of his
testator, if possible, and when consistent with the will. The words are
not necessarily addressed to the executor. The object to be performed
will usually afford a safe guide, in determining to whom they are
addressed.
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Applying Lines' above-quoted rule of construction to French's Will, the "requests"
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included in the first sentence ofthe Third Article, qualify under Lines as "imperative"
or mandatory. That is because
1. the first sentence of that Article refers to "requests" that French had
"addressed" to Terry Glenn during French's lifetime;
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2. Terry Glenn was named in French's Will, and was appointed to serve, as
personal representative, a/k/a "executor."
3. Therefore, the requests, referred to in the Third Article, were requests
addressed to the "executor" and, as such, under Lines, were "imperative."
Lines' insistence that this construction should be "consistent with the will" as
a whole required the Third District to consider also the immediately ensuing, second
sentence ofthe Third Article, which referred to those same "requests" synonymously
as "directives." However, contrary to Lines' aforementioned requirement, the Third
District declined to consider the arguments raised by Roberts in regard to that second
sentence and explained that it was omitting consideration thereof simply "[b]ecause
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[Terry] Glenn survived French." Glenn,95 So.3d at 273 n. 1. The significance ofthat
omission is that it failed to take into account the facts that the word "directives" is
clearly mandatory and that the Third Article's interchangeable invocation of the
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words "request" and "directives" provided added confirmation of the "imperative"
construction contemplated by Lines.
The Third District further misapplied Lines' requirement to construe the Will
as a whole by selectively and mistakenly focusing on Article Fifth. Glenn, 95 So.2d
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at 274. Contrary to the Third District's construction, that Article did not purport to,
and could not be construed as, excluding all of French's "friends." All that Article
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Fifth stated was that those whom French excluded were excluded intentionally. The
first and second sentence ofthe Third Article make it clear that French contemplated
"benefitting" certain "friends," i.e., those specified in her requests/directives to
Glenn. Consistent with Article Fifth's direction that "only beneficiaries named herein,
share as beneficiaries ofmy probate estate," the reference in the Third Article to those
certain "friends whom I desire he benefit" comports with that direction and includes
those friends among the beneficiaries named.
The proper application of Corbin's and Lines' decisions to the facts ofthe case
at bar would have required a determination that the residuary clause in the Third
Article ofFrench's Will impermissibly attempted to make an oral testamentary devise
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and therefore was invalid, requiring that the residue ofFrench's Estate be distributed
pursuant to the rules of intestacy.
Where, as here, the Third District has misapplied the decisions of the First
District in Corbin and that of the Florida Supreme Court in Lines, this Court is fully
vested with jurisdiction to review the Third District decision under Art. V, § 3(b)(3),
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Fla. Const. Jaimes v. State, 51 So.3d 445, 446 (Fla. 2010).
II. THE COURT SHOULD EXERCISE ITS DISCRETION IN FAVOR
OF ACCEPTING THE PETITION FOR REVIEW
The Court should exercise its discretion in favor of accepting jurisdiction in
order to harmonize Florida law on this important issue. The Third District decision
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opens the door for personal representatives, whether through fraud of lapse of
memory, to divert bequests to themselves and exposes testators to the danger of oral
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bequests being substituted in place ofthe formalities ofa will. By allowing the devise
clause in French's Will to stand, the Third District decision eviscerates the statutory
requirements that must be met before a document bequest qualifies under a will.
CONCLUSION
The Court is vested with jurisdiction to review the Third District decision and
should exercise its discretion in favor of accepting the Petition for review.
Respectfully submitted,
ARTHUR J. MORBURGER
Co-counsel for Petitioner
Suite 404 19 West Flagler Street
Miami, FL 33130
Tel. No. (305) 374-3373
[email protected]
Fla. Bar No. 157287
PETER A. COHEN
Co-counsel for Petitioner
Suite 810 19 West Flagler Street
Miami, FL 33130
Tel. No. (305) 358-9251
[email protected]
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TIMOTHY C. LINCOLN
Co-counsel for Petitioner
46 N.E. Sixth Street
Miami, FL 33132
[email protected]
CERTIFICATE OF SERVICE
I hereby certify that a true copy ofthe foregoing was e-mailed to John R. Kelso
[email protected] this 12th day of November, 2012.
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief comports with font and spacing
requirements imposed by Fla. R. App. P. 9.210.
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Mjírb Bistrict Court of §ppeal
State of Florida, January Term, A.D., 2012
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Opinion filed June 20, 2012.
Not final until disposition of timely filed motion for rehearing.
No. 3D11-1093
Lower Tribunal Nos. 10-2715 & 10-3250
Terry Glenn,
Appellant,
vs.
Dawn Roberts, etc.,
Appellee.
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An appeal from the Circuit Court for Miami-Dade County, Lawrence A.
Schwartz, Judge.
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Levey, Filler, Rodriguez, Kelso & Magilligan and John R. Kelso, for
appellant.
Arthur J. Morburger; Peter A. Cohen; Timothy C. Lincoln, for appellee.
Before CORTIÑAS, LAGOA, and SALTER, JJ.
LAGOA, J.
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Terry Glenn ("Glenn") appeals from an order granting Dawn Roberts's
"Roberts") motion for judgment on the pleadings, which found that the residuary
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estate of the decedent, Barbara Annette French ("French"), must be distributed
pursuant to Florida's intestate statute. We reverse.
I.
FACTUAL AND PROCEDURAL HISTORY
On March 20, 2003, French executed a Last Will and Testament (the
"Will"). The Will contained the following Article, in relevant part:
THIRD
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I hereby give, devise and bequeath all of the rest, residue
and remainder of my estate, both real and personal, of
whatsoever kind and nature, and wheresoever the same
may be situate unto my friend, TERRY GLENN, having
full confidence he will honor all requests made to him by
me prior to my death as to friends whom I desire he
benefit.
The Will also contained the following last and final Article:
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FIFTH
In the preparation of this, my Last Will and Testament, I
have carefully and thoughtfully considered each member
of my family and all of my friends, and have not
unintentionally omitted any of them, as it is my desire,
and I so direct, that only those beneficiaries named
herein, share as beneficiary of my probate estate.
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French died on July 7, 2010.
Glenn, who was named as personal representative, commenced probate
proceedings in the circuit court. Shortly thereafter, Roberts filed a petition seeking
to set aside the Will. Roberts claimed that she was Frencl1's only grandchild, and
the rightful heir to French's estate. Relying upon Estate of Corbin v. Sherman, 645
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So. 2d 39 (Fla. 1st DCA 1994), she argued that the first sentence of the Third
Article, which devised the residuary estate to Glenn, was ineffective as a
testamentary disposition because it was an oral instruction and did not meet the
statutory requirement that a will be in writing. See §§ 731.201(36), 732.502, Fla.
Stat. (2002). Roberts asserted that, as a result, the Will was invalid and all of
French's property should be distributed in accordance with Florida's law of
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intestate succession.
Roberts subsequently filed a motion for judgment on the pleadings. After a
hearing, the trial court granted Roberts' motion for judgment on the pleadings and
ordered French's residuary property to be distributed pursuant to Florida's
intestacy statutes. This appeal ensued.
II.
ANALYSIS
We review a trial court's order granting a judgment on the pleadings de
novo. See Newsome v. Geo Group, Inc., 72 So. 3d 168, 170 (Fla. 4th DCA 2011).
A motion for judgment on the pleadings may be granted only if the moving party is
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clearly entitled to a judgment as a matter of law. See Clarke v. Henderson, 74 So.
3d 112, 114 (Fla. 3d DCA 2011); Cuccarini v. Rosenfeld, 76 So. 3d 328, 330 (Fla.
3d DCA 2011).
As always, the polestar of will interpretation is the testator's intent, which is
"ascertained from the four corners of the document through consideration of 'all
the provisions of the will taken together, rather than from detached portions or any
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particular form of words.'" Bryan v. Dethlefs, 959 So. 2d 314, 317 (Fla. 3d DCA
2007) (quoting Sorrels v. McNally, 89 Fla. 457, 462-63, 105 So. 106, 109 (1925)).
Accord Diana v. Bentsen, 677 So. 2d 1374, 1377 (Fla. 1st DCA 1996) ("In
construing a will, the whole instrument must be considered, and a review of the
entire testamentary scheme must be undertaken.") It is also settled that the law
favors any reasonable construction of a will over intestacy. See In re Gregory's
Estate, 70 So. 2d 903 (Fla. 1954); In re Smith, 49 So. 2d 337 (Fla. 1950);
Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th
DCA 2005).
We conclude that the trial court erred in granting Roberts's motion for
judgment on the pleadings. Although the trial court did not articulate the basis for
its decision in either a written order or at the hearing, the only argument presented
by Roberts below in support of her motion was that the Third Article constituted an
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unauthorized oral will, and that, as in Estate of Corbin v. Sherman, 645 So. 2d 39
(Fla. 1st DCA 1994), the Will therefore must be. invalidated as ineffective.
However, a review of the unambiguous language of French's Will makes clear that
it does not constitute an oral will and that Corbin does not apply here.
In Corbin, the will at issue contained the following provision: "FIRST: I
give, bequeath and devise all of my estate of whatsoever kind and nature and
wherever located to BETTY GUY SHERMAN to dispose of as she has been
instructed to do by me." 645 So. 2d at 40. On appeal, the appellants argued,
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among other things, that the trial judge erred in his construction of the will and in
ordering distribution thereunder. Id. at 41. The First District agreed, concluding
that the will failed to effectively devise the property to designated beneficiaries and
that intestacy resulted. Id. at 42. In reaching its conclusion, the First District
determined that the will unambiguously attempted to devise the decedent's
property to Sherman, for Sherman to distribute according to oral instructions from
the decedent.
Because Florida does not recognize oral wills or provide for
incorporation of oral instructions, intestacy resulted. Id.
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Here, unlike in Corbin, the language in French's Will is merely precatory,
and not mandatory.' In Corbin, the language at issue was clearly mandatory as it
referenced oral instructions for the distribution of property ("to dispose of as she
has been instructed"). Because it mandated the distribution of the decedent's estate
pursuant to oral instructions, it constituted an unauthorized oral will. In contrast,
the language here does not mandate Glenn to distribute the residuary estate
according to instructions from French, but rather, simply expresses French's hope
that Glenn will honor all of her "requests."
In other words, the unambiguous
language of the Third Article devises the entire residuary estate to Glenn, who then
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' Because Glenn survived French, we do not address Roberts's arguments
concerning the second sentence of the Third Article which provided that in the
event Glenn predeceased French, or did not survive distribution of her estate, the
residuary estate was devised to Glenn's wife, Pearl, "having equal confidence that
she will likewise follow my directives expressed to her and her husband prior to
my death."
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has the discretion to honor French's requests. Cf. Lines v. Darden, 5 Fla. 51
(1853) ("The words 'will and desire,' are not necessarily mandatory, nor does the
question turn upon their grammatical construction. . . . Their import and
signification depends not so much as to whom they are addressed, as the intention
of the party using them . . . ."); Diana, 677 So. 2d at 1378 (concluding that
provision in will that "request" stock be sold was not mandatory; "the crucial
question remains the intent of the testator as made manifest in the will as a
whole"); In re Estate of Fresia, 390 So. 2d 176 (Fla. 5th DCA 1980) (stating rule
that depending upon the intent of the testator, precatory words are sometimes mere
recommendations and are sometimes mandatory).
In construing the Will as a whole, we find further evidence that it was
French's intent to devise her residuary estate to Glenn without limitation from the
express language of the Will's final provision. The Fifth Article states as follows:
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In the preparation of this, my Last Will and Testament, I
have carefully and thoughtfully considered each member
of my family and all of my friends, and have not
unintentionally omitted any of them, as it is my desire,
and I so direct, that only those beneficiaries named
herein, share as beneficiary of my probate estate.
The Fifth Article establishes that: (1) French disinherited her family, among whom
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Roberts claims to be a member, and did not unintentionally omit them; and (2) the
only beneficiaries of French's estate are those named in the Will, i.e., Glenn and
his wife Pearl.
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Accordingly, because we find that the trial court erred in finding that the
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Will at issue was an oral will, we reverse the trial court's order invalidating the
Will and remand with directions to enter judgment finding that Glenn is the sole
beneficiary under French's Will.
Reversed and remanded.
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