Will contests in probate court, a recent Florida law update

A Will can be challenged by Caveat or Functional equivalent

On March 9, 2018, Florida’s Second District Court of Appeal held that the functional equivalent of a caveat may serve to properly contest a will.[1]  The court observed that the Appellant in the case at issue “filed a pleading styled ‘Answer and Affirmative Defenses’ and did not file a pleading styled ‘caveat.’”[2]  Nonetheless, the court found the pleading sufficient to function as a caveat.[3]  Here is why.

First, what is a Caveat?

A caveat is a notice that can be filed with a probate court, which provides notice that certain actions may not be taken without informing the person who gave the notice (i.e., the caveator).  Prior to 1977, the Florida Probate Code allowed only state agencies who were creditors of the estate to file a caveat in order to receive notice of estate proceedings necessary for the protection of their interests.[4]  In 1977, the legislature expanded the caveat procedure to “any person who is wary of disposition of an estate without his knowledge.”[5]  Committee notes to Florida Probate Rule 5.260 explain that “[c]aveat proceedings permit . . . [an] interested person to be notified when letters of administration are issued. Thereafter, the caveator must take appropriate action to protect the caveator’s interests.”

Further, Fla. Stat. § 731.110(3) states:

If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules. This subsection does not require a caveator to be served with formal notice of its own petition for administration.

Thus, a caveator will include someone who wishes to contest a will.

In Rocca v. Boyansky, 80 So.3d 377, 381 (Fla. 3d DCA 2012), the court confirmed that Florida law requires the rights of caveators to be determined prior to the issuance of letters of administration.  Therefore, a caveat serves to begin the process of challenging a will.

What is Required to File a Caveat?

Florida Probate Rules specify the information requirements for a caveat as:

. . . the name of the person for whom the estate will be, or is being, administered, the last 4 digits of the person’s social security number or year of birth, if known, a statement of the interest of the caveator in the estate, and the name and specific mailing address of the caveator.

Fla. Prob. R. 5.260(b).

In Crescenzo, which was decided March 9, 2018, the court found that the pleading it ruled could serve as a caveat because the pleading:

  • Identified the name of the estate to which it applied,
  • Identified Appellant’s interest as half-owner of the estate’s sole asset,
  • Provided the name and mailing address of Appellant’s attorney,
  • While it did not provide the decedent’s social security number or year of birth; the record contained no indication that Appellant or his counsel knew that information. Further, the pleading referenced a document containing that information as well as the case number so that interested parties could find the information.[6]

Substance Matters over Form.

While formalities can sometimes matter and be dispositive to an action failing, here the court said that substance matters over form when “the substance of what [appellant] was doing is obvious”—looking for a decision on his will contest.[7]

The foregoing provides a brief overview of the use of a caveat to contest a will.  If you are interested in more information about wills, probate, or other estate planning or administration issues, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help. Bart Chepenik, 305-613-3548, Brad Trushin, Office, (305) 981-8889. Call on Brad today for help with your legal needs.


[1] See Crescenzo v. Simpson, No. 2D16–5649877, 2018 WL 1219709 at *1, *3 (Fla. 2d DCA 2018).

[2] Id. at *2.

[3] Id. at *3.

[4] Rosemarie Sanderson and Andrea Simonton, The Florida Probate Code, 32 U. Miami L. Rev. 1157, 1163 (1978), http://repository.law.miami.edu/umlr/vol32/iss5/6.

[5] Id.


[6] Crescenzo, 2018 WL 1219709, at *2.

[7] Id at *3.

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