2nd DCA Grapples with 733.109, Fla. Prob. R. 5.270—caveat not required to contest will when answer and affirmative defenses proper.

On March 9, 2018, Florida’s 2nd DCA clarified probate procedures by writing that the failure to file a caveat, or a petition to revoke probate, is/are not fatal to object to a will (and a petition for administration). In this case, an answer and affirmative defenses to the petition for administration was legally sufficient. A will was filed for a decedent, with allegations that the sole estate asset was real property in Hillsborough County. Mr. Crescenzo filed an answer and also affirmative defenses, alleging that he had an interest in the property and claiming that the will was not valid based on fraud and undue influence. In other words, Mr. Crescenzo did everything he needed to do to object to the petition for administration, to establish his standing in the probate proceeding, and to allege that the will offered for probate was not valid. Somehow, someway, the court entered an order— without conducting a hearing !! – admitting the will to probate, and not addressing or considering Mr. Crescenzo’s answer and affirmative defenses. This was an error by the probate court judge, which, the 2nd DCA confirmed, was required to first address Mr. Crescenzo’s answer and affirmative defenses prior to admitting the will. This 2nd DCA opinion tells us nothing new, nor does it tell us anything that we don’t know. This case does serve as authority, however, for probate cases where some probate lawyers “go in” to UMC ex-parte, improperly, or, simply “mail in” orders to the court, ignoring contested facts and other parties’ pleadings. Although Mr. Crescenzo was not required to file a caveat to object to the will, see 731.110, he could have filed a counter-petition with his answer, seeking affirmative relief ( such as a declaration that the will is void). (Although, who knows whether that would have even helped.) The opinion in Crescenzo v. Simpson, March 9, 2018, Florida’s 2nd District Court of Appeal, click here to read.