Everyone takes things personally and sometimes during the long course of an adversarial probate you may get on a judge’s nerves and that can be costly. In order to disqualify a judge from a proceeding due to bias you will need to file what is called a motion for recusal and more, the judge will actually have to agree with you. Yes, you can appeal it to a higher court but your odds of success are still slim, as a case from the Alaskan Supreme Court shows. On March 6th 2015 the Alaskan Supreme Court issued its decision In Re Estate of Bavilla. Want to recuse a judge in your Florida Probate? Contact an experienced Florida Probate Attorney.
- Etta Bavilla brough a challenge to the administration of her mothers estate. Her mother died leaving her and her brother Stephen as heirs. The mother had left a will in 1987 but then after substantial mental detoriation (starting around 2000) in 2006 she executed a new ill disinheriting Etta.
- Etta attempted to probate the 1987 will through an informal probate ( a simpler probate that is available in Florida for smaller estates with assets worth less than $3,000.)
- Etta was incarcerated at the time and she filed her pleadings from jail and made several errors. The magistrate refused to allow her to amend her pleadings to correct the errors and she appealed that (and several other issues after the court ruled she would get nothing.)
- Etta felt that the magistrate was biased against her for being incarcerated.
Here is the thing, recusal is governed by statutes and case law but it tends to list the things that require recusal.Although a judge has broad discretion to recuse themselves the list of what requires it in other words is very limited. SO the judge was well within their right to refuse to recuse themselves (although they had made other errors in the case).
- In Florida Probate Adversarial Proceedings you are going to get some rulings that you do not like. You cant win them all! All too often the first instinct is to scream that this judge is biased and after reading this blog you may think recusal is the answer.
- But this case shows something that I see in most of these cases — there is always some bias and you cant get rid of it all. Worse, after you make that motion that judge if he did dislike you, is not gonna be any more fond of you. So these may cost you way more than you can gain.
- Its impossible for me to sum up here when and why you should motion for recusal.
- Only consultations with an experienced Probate Attorney is going to get you the best results.
Want to read more? Check out the entire case here.