IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC L.T. Case Nos. 3D , DAWN ROBERTS, Petitioner, vs.

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1 Electronically Filed 07/16/ :53:39 PM ET RECEIVED, 7/16/ :13:44, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC L.T. Case Nos. 3D , DAWN ROBERTS, Petitioner, vs. TERRY GLENN, Respondent. ANSWER BRIEF ON MERITS BY RESPONDENT On Certiorari Review of a Decision of the Third District Court of Appeal of Florida John R. Kelso LEVEY, FILLER, RODRIGUEZ, KELSO & MAGILLIGAN, LLP 1688 Meridian Avenue, Suite # 900 Miami Beach, Florida Tel.: (305) Fax: (305) Attorneys for Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS...2 A. Statement of the Case...2 B. Statement of the Facts...6 SUMMARY OF THE ARGUMENT...12 STANDARD OF REVIEW...14 ARGUMENT...15 I WHETHER THE THIRD DISTRICT CORRECTLY DISTINGUISHED THE FACTS OF THIS CASE FROM CORBIN AND CORRECTLY APPLIED APPLICABLE LAW WITHOUT CREATING ANY CONFLICT...15 II WHETHER THE THIRD DISTRICT S DECISION DID NOT ADVERSELY AFFECT ANY VESTED RIGHT ROBERTS MAY HAVE HAD...29 III ROBERTS NEVER ESTABLISHED HER STANDING, WHICH HAS NEVER BEEN WAIVED ii-

3 CONCLUSION...40 CERTIFICATE OF SERVICE...40 CERTIFICATE OF COMPLIANCE...41 APPENDIX (attached) -iii-

4 TABLE OF AUTHORITIES Cases: Page: American Housing Sys. Corp. v. Country Club of Miami Corp., 342 So.2d 1026 (Fla.3d DCA 1977)...38 American Wall Sys. Inc. v. Madison Int al Group, Inc, 944 So.2d 172 (Fla 2006)...14 Arrow Air, Inc. v. Walsh, 645 So.2d 422 (Fla.1994) Canaan Nat l Bank v. Peters, 586 A.2d 562 (Conn.1991) Caple v. Tuttle s Design-Build, Inc., 753 So.2d 49 (Fla.2000) City of Orlando v. Desjardins, 493 So.2d 1027 (Fla.1986) Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987) City of Plant City v. Mann, 400 So.2d 952 (Fla.1981) st Diana v. Bentsen, 677 So.2d 1374 (Fla. 1 DCA 1996) , 25 Dutcher v. Estate of Dutcher, 437 So.2d 788 (Fla. 2d DCA 1983) Elmore v. Elmore, 99 So.2d 265 (Fla.1957)...20 th Estate of Barbara Annette French, 11 Jud. Circuit (Florida), Case No (CP-02)...2 Estate of Burris, 361 So.2d 152 (Fla.1978)...33 st Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1 DCA), rev.den., 659 So.2d 270 (Fla.1995)... passim Fresia v. Florida Bank & Tst. Co. [etc.], 390 So.2d 176 (Fla.5th DCA 1980).. 29 Glenn v. Roberts, 95 So.3d 271 (Fla. 3d DCA 2012) , 5, 29 -iv-

5 In re Douglas Will, 89 N.Y.S.2d 498 (1949)...28 In re Estate of Baer, 446 So.2d 1128 (Fla. 4th DCA), rev.den., 456 So.2d 1181 (Fla.1984)...20 In re Estate of Barker, 448 So.2d 28 (Fla. 1st DCA 1984) In re Estate of Gold, 189 So.2d 905 (Fla. 3d DCA 1966) In re Estate of Lubenow, 146 N.W.2d 166 (N.D. 1966) , 28 In re Estate of McGahee, 550 So.2d 83 (Fla. 1st DCA 1989) st In re Estate of Scott, 659 So.2d 361 (Fla. 1 DCA 1995) In re Gregory's Estate, 70 So.2d 903 (Fla.1954)...20 In re Smith, 49 So.2d 337 (Fla.1950)...20 Krieger v. Ocean Properties, Ltd., 387 So.2d 1012 (Fla.4th DCA 1980) Lawnwood Medical Center, Inc. v. Seeger, 990 So.2d 503 (Fla.2008) Lines v. Darden, 5 Fla. 51 (1853)... passim Lorraine v. Grover, Ciment [etc.], 467 So.2d 315 (Fla. 3d DCA 1985) th Roberts v. Glenn, 11 Jud. Circuit (Florida), Case No (CP-02)... 2, 4, 5 State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55 (Fla.1995) Sturdevant v. SAE Warehouse, Inc., 270 N.W.2d 794(N.D.1978) Wehrheim v. Golden Pond Assisted Living Facility, th 905 So.2d 1002 (Fla. 5 DCA 2005)... 5, 20, 38 Weingrad v. Miles, 29 So.3d 406 (Fla. 3d DCA 2010) , 34 Will of Moody, 154 A.2d 165 (Me.1959) v-

6 Constitution: Art.V, 3(b)(3), Fla.Const....6, 14 Statutes: (23), Fla.Stat. (2011)....32, (2), Fla.Stat. (2011) (1), Fla.Stat. (2011) , Fla.Stat. (2011) , Fla.Stat. (2011) , Fla.Stat. (2011)...21, , Fla.Stat. (2011)... 15, 29-32, (1), Fla.Stat. (2011) , Fla. Session Law...30, 35 Rules: Fla.R.App.P (a)(2)(A)(iv)...6 Fla.R.App.P (a)(2)...6 Fla.R.Civ.P (c)...3, 9, 26 Fla.R.Civ.P , 9, 10 Fla.Prob.R (a)...26 Fla.Prob.R (d)(2) vi-

7 INTRODUCTION This is a will contest by petitioner, DAWN ROBERTS ( Roberts, who was petitioner in the trial court and appellee in the district court). She challenges the interest claimed by respondent, TERRY GLENN ( Glenn, who was respondent in the trial court and appellant in the district court), as a beneficiary under the Will of decedent, Barbara Annette French ( French ). Roberts prevailed in the trial court, but Glenn mounted a successful appeal in the District Court of Appeal of Florida, Third District ( Third District ) in Glenn v. Roberts, 95 So.3d 271 (Fla. 3d DCA ) ( Glenn ). Pet.A-1. Roberts claims to be French s granddaughter, which Glenn disputes. Roberts, as putative heir, brought the district court decision here, claiming conflict, and the Court accepted jurisdiction. Glenn claims that he is sole beneficiary under the Will. R-14. Resp.A-1. Roberts urges, below and here, that the Will is invalid and that estate property should descend under the laws of intestacy to her (notwithstanding that she apparently has siblings). Glenn maintains that there is neither error nor conflict shown by Glenn; jurisdiction was improvidently accepted; and this cause should be dismissed or affirmed. 1 The record-on-appeal, Petitioner s Appendix and Respondent s Appendix (attached) are referred to herein as R-, Pet.A- and Resp.A-, respectively, followed by the applicable page number. Petitioner s Initial Brief on the Merits is referenced as Init.Br. All emphasis herein is supplied, unless otherwise noted. -1-

8 STATEMENT OF THE CASE AND FACTS A. Statement of the Case 2 French left a Will, executed in 2003, leaving all of her assets to Glenn or his wife, if he did not survive distribution and naming him as Personal Representative ( PR ). R-14; Resp.A-1, Articles Third and Fourth. She died July 7, 2010, at age 69. Glenn commenced probate proceedings in the Miami-Dade County Circuit Court Probate Division, where Letters of Administration were issued to him as PR on October 7, 2010, R-21, 22, in Estate of Barbara Annette French, Case No (CP-02) ( Estate ). Shortly thereafter, Roberts commenced an adversary proceeding with the filing of her Petition, R-33, styled Roberts v. Glenn, Case No (CP-02) ( Roberts I ), alleging that she is French s granddaughter. French s only child, a daughter, 3 passed away years ago. Roberts claimed at Count I that the first sentence of Article Third of this Will was fatally flawed, and that all Estate property should descend by st intestacy, under Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1 DCA), rev.den., 659 So.2d 270 (Fla.1995). 2 Roberts Statements of the Case and the Facts are mostly accurate but incomplete. Glenn here provides a more complete background. 3 In Roberts four-count Petition, she originally sought to set aside the Will (Count I), impose a constructive trust (Count II), have certain assets returned by Glenn (Count III), and have Glenn removed as PR (Count IV). She later withdrew all but Count I. -2-

9 Corbin was the authority upon which Roberts exclusively relied in urging the invalidity of this Will. R-79. While the lower court gave no reasons for finding such invalidity, R-154, it is here assumed that it did so in reliance upon Roberts argument that the rule of Corbin destroys the validity of the instrument. Glenn Filed his Answer to Petition [etc.], denying all material allegations but admitting that the Will was authentic. R-44. Among the material allegations denied was Roberts claim that she is French s granddaughter. Id., at 1. Roberts then filed her Motion for Judgment on the Pleadings ( Roberts Motion ), presumably under Fla.R.Civ.P (c). R-79. Glenn s written response included his Cross-Motion for Summary Judgment ( Glenn s Motion ), under Rule R-93. Glenn s Motion papers included Declarations from Barbara North Burton, Esq., and Virginia Johnson, Esq. Id., Exhibits C and D. Burton is the lawyer who met with French and prepared her Will in Miami in 2003; Burton s Miami colleague, Johnson, supervised French s execution of that instrument. 4 Roberts, through counsel, took Glenn s deposition October 6, While it does not appear that the transcript thereof was filed, Glenn s Motion attached 5 excerpts of Glenn s deposition testimony. R-93, Ex. B. 4 The Burton Declaration is attached, Resp.A-2, but for brevity without its referenced copy of the Will, attached as Resp.A-1. 5 Those excerpts were not challenged below and were included as A-24 in Glenn s Initial Brief Appendix below. -3-

10 After Roberts Motion was filed but before it was heard, Roberts filed her Notice of Withdrawal [etc.], R-134, in response to Glenn s unfiled demand. That withdrawal (a) eliminated from the Roberts I Petition all demands for relief other than the Count I challenge to the validity of the Will, and (b) mooted Glenn s Motion challenge to the other Counts. Ignoring her siblings or other heirs at law, Roberts sought by her Count I Petition claim to defeat the Will, have the estate assets distributed by intestate succession, and acquire all such assets for herself, in 6 derogation of the rights of any other member of her family. Days after French s death in July of 2010, Roberts came from her home in Iowa and moved into French s Miami apartment, taking over all of her papers and property. See R-49. Despite Glenn s discovery efforts to obtain access to and possession of French s papers and property, Roberts still holds all of French s property, including her personal computer, and many of her papers. Since those disputed discovery issues remain unresolved, Glenn is without knowledge whether Roberts found any prior wills or codicils, or any written devises of tangible personal property. Glenn is accordingly without access to papers in French s possession before she died that could shed light on Roberts disputed claim that she is French s blood 6 Roberts refused in late 2010 to comply with any of Glenn s discovery inquiries concerning (a) Roberts claim that she is French s granddaughter, (b) the identity and whereabouts of others of French s heirs, and (c) who are Roberts and French s other relatives. Glenn s efforts to pursue these discovery demands in the estate litigation await appellate resolution, which may moot those efforts. -4-

11 7 relation. Roberts refusal to produce anything responsive to Glenn s records request frustrates any attempt to learn whether French left a prior will that may also have disinherited Roberts. 8 By Order of March 28, 2011, the probate court granted Roberts Motion and directed that, The decedent s residuary property must be distributed pursuant to Florida s intestacy statute. R-154. The Order s silence concerning Glenn s Motion impliedly denied that application. Glenn s Motion for Rehearing [etc.], R-146, was 9 denied. R-155. Glenn timely appealed. In mid-june of 2012, the Third District reversed in Glenn and later denied Roberts applications for rehearing and rehearing en banc. Despite Roberts erroneous statement that Glenn mandates that the devise vest 7 Almost half a year after Roberts took over French s apartment, her counsel delivered to Glenn s counsel two boxes of innocuous papers that appeared to have been carefully sifted, which included nothing germane to any disputed issue not even French s last checkbook. R If such a prior will exists, Roberts would have no standing here, since a finding that the current Will is invalid would not make Roberts an interested party (discussed infra). Should another will surface executed earlier or later and should it also disinherit Roberts, the doctrine of dependent relative revocation would likely arise. See Wehrheim v. Golden Pond Assisted Living Facility, 905 th So.2d 1002 (Fla. 5 DCA 2005). Based upon the present record, there are no facts with which to assess Roberts claim of standing (also discussed infra). 9 On April 5, 2011, Roberts filed another Petition, Case No (CP-02) ( Roberts II ), once again seeking to have Glenn discharged as PR. Roberts II is a separate adversarial case in the estate litigation. While it remains pending, it is not involved in these appellate proceedings. -5-

12 immediately, Init.Br., at 21, the lower court concluded its decision by remanding with directions to enter judgment finding that Glenn is the sole beneficiary under French s Will. Pet.A-1, at 7. Roberts made timely application for this Court to accept conflict jurisdiction. The Court has accepted jurisdiction under Art.V, 3(b)(3), Fla.Const., and Fla.R.App.P (a)(2)(A)(iv). B. Statement of the Facts (1) The Will French left a Will, Resp.A-1, executed seven years before her death, in which she devised her property as follows: THIRD 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. In the event TERRY GLENN should predecease me, or fail to survive distribution of my estate, I hereby give, devise and bequeath my residuary estate unto his wife, PEARL GLENN, having equal confidence that she will likewise follow my directives expressed to her and her husband prior to my death. In the event Glenn predeceased distribution of the Estate, French s Article Third left her residuary estate to Glenn s wife, Pearl Glenn. That provision is now effectively moot, since Terry Glenn survives. Roberts Motion focused upon Article Third but ignored Article Fifth, where French specifically disinherits all family and friends the class of unnamed persons -6-

13 that would necessarily include Roberts, if she is related using these words: 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. As noted, the only persons named herein are Glenn and his wife, Pearl. Article First specifically directs the PR to pay legal debts and funeral expenses, and have her remains cremated, all of which has been accomplished. At her Article 10 Second, French suggests that she might leave one or more dispository writings. This 10 Article Second provides, in its entirety: SECOND I hereby give and bequeath unto those persons designated in a separate writing in existence at the time of my death, which is signed and dated by me, such of my tangible personal property, which describes the items and the devisees with reasonable certainty, provided that such separate writing is filed with the Court having jurisdiction of my estate no later than three (3) months after the entry of the order admitting this Will to probate. If there are two or more of such separate writings in existence at the time of my death, and there is a conflict between the provisions of the separate writings, then to the extent of such conflict the provisions of the separate writings bearing a later date shall take precedence over the provisions of a separate writing bearing an earlier date. The term tangible personal property includes all of my personal effects, wearing apparel, jewelry, objects of art, household furnishings and other tangible personal property, but does not include money and property used in a trade or business. To the extent that the separate writing referred to above shall fail to dispose of my tangible personal property, I direct that the same be administered as part of my residuary estate. -7-

14 provision is troubling because, as discussed above, Roberts forcibly took and still holds exclusive possession of virtually everything French left behind when she died. 11 To date, Glenn has discovered no writings from French that could have been contemplated under her Article Second or Third, and it is therefore not known whether any such requests were actually made. By its terms, Article Second is moot because no separate writing was ever found and the 90-day deadline for its filing has long passed. For lack of the appearance of a separate writing, plus Glenn s continued lack of free access to French s home and the balance of her papers, Glenn can only assume that French left behind no expression whatsoever having anything to do with disposition of her property, other than what appears in the Will, itself. (2) Motions by Roberts and Glenn Since all of Roberts other demands had been withdrawn, Roberts Motion sought judgment on the pleadings only as to Count I. R-79. That claim sets forth three operative paragraphs all denied by Glenn in his Answer, R-44 alleging that the operative provisions devising the residuary estate of the decedent were ineffective, and claiming that the entire will is invalid and intestacy resulted... Roberts Motion focused almost exclusively on Corbin. As noted, Glenn s Answer also denied that Roberts is French s granddaughter. 11 Article Fourth appoints Glenn as PR, or his wife, Pearl, as his alternate. Of the Will s five articles, all have now been accomplished. Assuming the instrument is valid, nothing remains but for distribution of estate assets. -8-

15 Roberts Motion for Judgment on the Pleadings impliedly but necessarily invoked Fla.R.Civ.P (c) and addressed only those complaint allegations that were admitted. The only relevant admission made by Glenn is as to the authenticity of French s Will. Glenn s Cross-Motion seeking summary judgment was made under Rule 1.510, which authorizes the court to consider the declaration testimony of French s estate planning lawyers and Glenn s deposition testimony (both discussed infra). Under Rule 1.510(e), Roberts could have filed counter affidavits but did not. (3) Glenn s Deposition Testimony Glenn s Motion included reference to his deposition testimony where he denied ever giving French any legal advice or opinions on matters calling upon his legal knowledge (at 42, 43). He stated that French never told him: (1) that she would be providing by her Will for him or his wife (at 44); (2) that she intended to write a will (at 82); or (3) what she could place in her Will, even in general terms. She never discussed with Glenn how assets would be distributed in the absence of a will (at 82) or the Florida intestacy statute; she never discussed her Will at all, or whom she wanted to provide for in her Will (at 82, 83). In other words, French never left Glenn any oral or written requests prior to her death (her word, in Article Third)... as to friends whom I desire he benefit. Id. That Glenn is and was a lawyer is pure coincidence; he was never French s lawyer. -9-

16 (4) Burton Declaration Glenn s Motion attached and relied upon, inter alia, the Declaration of Barbara North Burton, the lawyer who prepared French s Will. R-93, Exhibit C; Resp.A The Burton Declaration affirms that French fully understood what she was doing when she included the dependent clause appended to the end of Article Third, referring to then-unmade but possible future requests she might leave for Glenn. Burton drafted French s Will in early 2003 more than eight years before French died. French expressly told Burton that French did not want to leave any of her estate to any family member or any of her friends, other than Mr. Glenn. Id., 8. Burton avers that the language of Article Third,... was carefully chosen to ensure that the election to benefit any person from the property of this testatrix was to be made by Mr. Glenn, based on post-will, pre-death instructions, if any, that the testatrix might provide to Mr. Glenn. If no such directions were made, the intention expressed in these words is clear. Id., 9. It appeared to Burton that French had not then made any such requests, and Burton was unclear whether French... in fact ever would, or intended to, communicate such directions to Mr. Glenn. Id., Roberts original Petition sought to defeat this Will with innuendo suggesting undue influence, without actually using those words. Glenn s Motion addressed all claims made in the Petition, including the undue influence innuendo. A function of the Burton Declaration was to affirm that French acted without any influence undue or otherwise. Roberts then withdrew all but the first count, and the undue influence issue disappeared. -10-

17 Burton further states, id., 12: I explained to Barbara that there were possible hazards, that any future verbal requests would not be legally binding upon him, and he could, if he so desired, ignore any verbal instructions later given, if any. All property would then simply become his. Despite all of my suggestions, Barbara insisted upon leaving her Will as non-specific as it today appears. Barbara was unconcerned about my warnings and was consistent throughout our discussion in her instructions to me that what she wanted to do was the form of instrument that she ultimately executed. (5) Standing Roberts Petition claimed that Roberts is French s granddaughter, R-33, which Glenn s Answer denied. R-44. That claimed fact if true would be relevant to her status as a beneficiary only if the property of this estate descends by intestacy. Had the probate court upheld this Will, Roberts claimed filial relationship to French would be irrelevant. Glenn s Motion addressed this unproven relationship claim as a standing issue. R-93, at 18. While a decision to uphold the Will would moot that issue, the decision as made leaves the relationship claim both unresolved and crucial to whether Roberts has any standing in these proceedings to challenge this Will. Roberts Motion and Glenn s competing Cross-Motion for judgment were orally argued to the trial court at the same hearing. Roberts reports, Init.Br. at 3, that Glenn s counsel (undersigned) waived standing at that hearing when he did not address the issue, instead telling the trial judge that the single issue was, [W]hat did this decedent intend... Id. However, Roberts several claims had by then been -11-

18 reduced to the single claim at Count I, challenging the Will s validity, based upon the language of the second sentence of the first paragraph of Article Third... as to friends whom I desire he benefit. Resolution of the competing Motions would turn on how the court read that clause. Had the court agreed with Glenn s reading of that language, all else would have been moot. Counsel s oral statement therefore was, id., There is a single issue here today, because Dawn Roberts, the putative granddaughter, has withdrawn her Counts 2, 3, and 4 contained within the petition. Roberts argues that Glenn is barred by the invited error doctrine from raising standing,... because he [ undersigned counsel] affirmatively represented to the trial court that standing was not an issue at the hearing on Roberts motion... Init.Br., at 8. The claimed representation was not made, does not appear in the words Roberts quotes at page 3 of her Brief, and appears to be an excess of hyperbole. The probate court did not explain its decision as to either side s Motions. Glenn can only assume that the court weighed and rejected all of Glenn s argument and found that Roberts has standing. SUMMARY OF THE ARGUMENT Oral wills are prohibited, but this was not an oral will, and the prohibition has no function here. In will construction, the primary objective is always to implement the testator s intent, if possible. The law abhors intestacy and favors any reasonable construction that does not -12-

19 do violence to the testator s language over a finding of intestacy. Will construction requires a determination, where possible, and without doing injury to the testator s intent, whether suggestions made in a will are mandatory or precatory. Those that are mandatory are often but not always binding on the personal representative ( PR ) and the probate court; precatory suggestions are usually only advisory and therefore not binding, but the facts of an individual case may lead to the opposite conclusion, and there is no hard and fast rule. The only mandatory directions appearing in this Will are the clear intent to leave all property to Terry Glenn (or his wife); the reference to directions to Pearl at the second sentence of Article Third, where there is no evidence of there ever having been any such directions; the direction to distribute items of personalty according to a separate writing that might have been left, but never was; and the direction to disinherit all friends and relatives not named in the instrument that is, everyone other than the Glenns. Roberts may not blend precatory suggestions made to Terry Glenn with mandatory directions to Pearl Glenn to properly conclude that all such provisions have become commands. The testatrix left the residuary estate to Glenn as devisee, not as PR, and contemplated making later requests that he exercise his discretion to make his gifts to others, knowing that he could disregard such requests. The point became moot when she died leaving no such requests for Glenn even to consider implementing. -13-

20 All other dispository suggestions and requests regarding the residuary estate are precatory. The testatrix left open the option of not leaving any requests or directions concerning the disposition of her property. The recently enacted addition to the Probate Code directs the court to follow and adhere to statements of testamentary intent, and to excuse a mistake of fact or law, whether in expression or inducement, in its effort to determine and implement the testatrix s intended estate plan. Nothing ever vested in Roberts, and the new remedial statute accordingly takes nothing away from her. Since Roberts standing is disputed, it was error to even consider her application for the relief of judgment, let alone grant it. Conversely, if this Will is valid, whether Roberts has or lacks standing is irrelevant. In either event, Roberts lack of standing has never been waived. STANDARD OF REVIEW This Court s conflict jurisdiction is limited by Art.V, 3(b)(3), Fla.Const., and clarified in American Wall Sys. Inc. v. Madison Int al Group, Inc, 944 So.2d 172, (Fla. 2006), as follows: We have discretion to review any decision of a district court of appeal... that expressly and directly conflicts [emphasis in decision] with a decision of another district court of appeal or of the supreme court on the same question of law.... [T]he conflict must be real, live and vital [emphasis supplied]. Roberts correctly states the standard of review of a judgment on the pleadings. -14-

21 ARGUMENT I WHETHER THE THIRD DISTRICT CORRECTLY DISTINGUISHED THE FACTS OF THIS CASE FROM CORBIN AND CORRECTLY APPLIED APPLICABLE LAW WITHOUT CREATING ANY CONFLICT Roberts claims both conflict jurisdiction and Third District error by her assessment of the holdings in Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1 st DCA), rev.den., 659 So.2d 270 (Fla.1995), and Lines v. Darden, 5 Fla. 51 (1853), plus her persistently made claim that French s Will was oral. She chafes at the new statute, , Fla.Stat. (2011), that allows a court to correct factual and legal errors in a will, and she denies that the issue of standing can now be raised. Every one of her arguments is flawed and none has merit. (A) Corbin, Lines and Oral Instructions Roberts argument relies almost exclusively upon her many false statements and suggestions to the Court that this case involves oral instructions by French to Glenn instructions that invalidated the will in Corbin, where the word oral appears six times. Other than Roberts oft-repeated attempts to characterize French s requests here as oral, there is no evidence in this record of any oral communication in any way relating to this Will. There is however evidence from Glenn that (a) he received no communication, of any kind oral or written, and (b) the separate writing French contemplated at Article Second never surfaced, and is presumed not -15-

22 13 to have been created. Roberts is here claiming conflict principally with Corbin and Lines. It is therefore essential to first establish what those cases held. The will in Corbin left property to the PR/devisee... to dispose of as she has been instructed to do by me. 645 So.2d at 40. The court held that these words which are mandatory, not advisory amounted to... attempts to devise the decedent s property to [the PR for her] to distribute according to oral instructions from the decedent. Id., at 42. Corbin provides a simply-stated, bright line rule that, Florida does not recognize oral wills, id., which neither applies nor conflicts with the decision here challenged, which did not involve or consider an oral will Roberts postulates that French had an evident intent to leave her requests and directives unwritten... Init.Br., at 22, n. 6. Evidence of that evident intent does not exist nor is it provided, but the argument shows Roberts desperate effort to pound a round peg into a square hole, to leave an inference of prohibited oral scheming where there was none. She also argues, id., from Lorraine v. Grover, Ciment [etc.], 467 So.2d 315, 318 n.5 (Fla. 3d DCA 1985), about the dangers of oral wills and the prospect of fraud by the person attempting to prove that the testamentary intent was other than that expressed in the will. Here, Glenn urges just what the Will says, seeking 14 Roberts couples her discussion of Corbin with references, Init.Br. at 10-11, to other First District cases that disregard a testator s intent after finding a will invalid and directing descent by intestacy. In In re Estate of Scott, 659 So.2d 361 st (Fla. 1 DCA 1995), the sole devisee predeceased the testator and, per the anti- lapse statute, property descended by intestacy to family whom the testator had specifically excluded. The decision and its foundation are not germane or helpful to Roberts. While the cases are sound, this argument intestacy follows invalidity puts the cart before the horse, as the essential threshold question is whether a claimed flaw mandates a finding of invalidity. -16-

23 Lines grapples at length with the question whether the testator s use of the words, my will and desire, commanded the creation of a trust by his daughter, Lines. The court began its analysis with this observation, [T]he intention of the testator, as expressed in his will, shall prevail over all other considerations, if consistent with the principles of law. The intention is everything; and to this first and great rule, in the exposition of wills, all others must bend. With an anxious desire to secure this leading object, the courts allow no rule of construction of mere words, to control the intention, but the whole instrument is to be considered, and if possible, effect given to every part of it. The relative situation of the parties, the ties and affections subsisting between them, besides the motive which would naturally influence the mind of the testator, are proper to be considered, in expounding the import of doubtful words. Id., at*4. Concerning the direction addressed to the PR, the court said, 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. Id., at *6. However, No commendatory terms of a will expressing a wish, will, desire, & c., are sufficient to create a trust, unless there be certainty, as to the parties who are to take, and what they are to take.... [I]f neither the objects nor the subject are certain, then the words of request do not create a trust, and the property being uncertain and indefinite, it may be conceded the testator meant to leave it entirely to the will and pleasure to add nothing, but it is Roberts who invites conjecture, speculation and surmise, id., to insert herself into a Will that specifically disinherited her claimed class. -17-

24 of the legatee, whether he would take upon himself that which is technically called a trust. Id., at *6. Despite the commanding import of the testator s words, the court noted, The words will and desire, are not necessarily mandatory, nor does the question turn upon their grammatical construction. They would be sufficient to raise a trust, if they were not coupled with words inconsistent with such construction. Id., at *7. The sole issue in Lines was whether a trust was created an issue obviously not here involved. As to that issue, Lines discussed a class of old English cases, id., at *9, where words of command were used, the benefit was direct, the intention manifest, and yet the bequest failed for want of certainty in the subject matter and because the interest was too indefinite. The true question in every case is, whether the intention of the testator is manifest and mandatory in favor of the object of the bounty, or is merely suggestive and advisatory to the first taker? Lines, id., at *8. After wading through a very complicated analysis of expressions that are mandatory (commands as to disposition of property) and precatory (words that are suggestive or advisatory [sic] but not binding), the court concluded that there was no requirement for the creation of a trust that was binding, but merely a power. If the discretionary but not required power were not exercised, the court would not interfere. The holding in Lines dealt with whether a trust was created and found that, -18-

25 mandatory-sounding words aside, there was no trust. While that specific holding has nothing to do with this case, the Lines reasoning is still helpful in explaining that the distinction between mandatory and precatory words is never simple; interpretation is often essential; and there is no bright line rule, despite Roberts efforts to find one. The decision affirms that words that facially sound mandatory may be precatory, and vice versa. The resolution of doubtful words may be dependent upon multiple factors, and commands will be read as such... if possible, and when consistent with the will. In other words, will construction is a delicate and subjective art, not the rigid linguistic science Roberts would have the Court believe. Per Lines, the first and great rule is to find and implement the testator s intent, and no rule of construction of mere words [will be allowed] to control the intention. Again, at Article Second, French said she might leave a separate writing to dispose of non-cash, non-business personalty, but by design or neglect failed to do so. She may also have intended, either by the Article Second writing or by some other means, to explain to Glenn benefits that she might like him to confer, at his discretion... requests... as to friends whom I desire he benefit, at Article Third. As there is no evidence of any such communication, but direct and uncontroverted evidence that there was none, it cannot be ascertained what friends or what benefits she had in mind. Given these obstacles, the sound logic of Lines is to disregard an impossible task, as the Third District has done. Nothing in Glenn has -19-

26 been shown to be in conflict real, live and vital, or otherwise with Lines. (B) The Law Abhors Intestacy [T]estacy is preferred by the courts over intestacy. Wehrheim v. Golden th Pond Assisted Living Facility, 905 So.2d 1002, 1008 (Fla. 5 DCA 2005). The cited case includes a survey of the wealth of Florida jurisprudence so holding, which is set forth verbatim in the margin. 15 (C) Directions for Devises Not Included in the Will The testatrix in Corbin left mandatory or required oral directions for the 15 The courts generally prefer any reasonable construction of a will to intestacy proceedings. See Elmore v. Elmore, 99 So.2d 265, 268 (Fla.1957) ( Intestacy is not favored but a construction leading to a valid will is favored. ) (citation omitted); In re Gregory's Estate, 70 So.2d 903 (Fla.1954) (recognizing that intestacy proceedings are not favored under Florida law); In re Smith, 49 So.2d 337, 339 (Fla.1950) ( It is said that the courts will prefer any reasonable construction, or any construction which does not do violence to the testator's language, to a construction which results in partial intestacy. ); In re Estate of Barker, 448 So.2d 28, 31 (Fla. 1st DCA 1984) ( [T]he law favors any reasonable construction of a will that disposes of all of the testator's property over an interpretation that results in partial intestacy. ); In re Estate of McGahee, 550 So.2d 83, 87 (Fla. 1st DCA 1989) ( [W]e are mindful that intestacies are not favored in the construction of wills. ), review denied, 560 So.2d 232 (Fla.1990); In re Estate of Baer, 446 So.2d 1128, 1128 (Fla. 4th DCA) ( [T]he law abhors intestacy. ), rev. den., 456 So.2d 1181 (Fla.1984); Dutcher v. Estate of Dutcher, 437 So.2d 788, 789 (Fla. 2d DCA 1983) ( Intestacy is not favored over a disposition under a will where construction of the will leads to a valid testamentary disposition. ) (citations omitted); In re Estate of Gold, 189 So.2d 905, (Fla. 3d DCA 1966) ( [I]n construing a will the terms of which would permit two constructions, one resulting in a valid testamentary disposition and the other in an intestacy, the latter is disfavored... ) (citations omitted). Id. -20-

27 disposition of her property following her death. At her Article Third, French here suggested that she would leave a precatory i.e., advisory or suggested request concerning disposition of her residuary estate. Since she did not do that, further analysis of that request is both impossible and unnecessary. In addition, at Article Second, French indicated that she might also make a separate writing that would list bequests of tangible personal property (i.e., personal effects, clothes and jewelry, but not money or the apartment property she used in a trade or business ). She further directed that (a) such writing would be operative only if found and filed within three months after the Will was admitted (now long past), and (b) should such writing fail for any reason, her tangible personal property would default into the Article Third residuum. Under and , Fla.Stat. (2011), the testator is permitted to leave separate writings, not included in her will, which dispose of tangible personal property ( other than property used in trade or business, per ). By these statutes, French could without question have left mandatory written directions to her PR devising her cat to the next-door neighbor and her diamond watch to the mailman, had she but written those directions on a signed and dated letter left in the top drawer of her desk, for Glenn as PR to find after her death. Glenn does not know if French left such a writing, because Roberts has held exclusive possession of many of French s papers and all of her property since she -21-

28 died. Glenn has no knowledge whether there are other wills or codicils, or writings devising tangible personal property, as contemplated under the Will, which are allowed and enforceable under Had there been such writings, they are in any event now moot, under Article Second, as they did not surface in time to be filed within three months after entry of the order admitting the known Will to probate. Regardless, a later-written mandatory instruction Give my cat to the lady next door had it surfaced, would have been routinely proper, binding on Glenn as PR and enforceable under the Probate Code. Since this did not happen, or did not happen in time, the issue is moot. Because courts are not mind readers, the whole of Article Second must be ignored, notwithstanding the Lines admonition to look at everything. (D) Will Construction Mandatory vs. Precatory Nonetheless, Roberts suggests that any devise not included in the Will, itself, constitutes a prohibited secret oral instruction. As such, and to insert herself into the line of succession, she urges that French s entire scheme is eviscerated and all estate property is tossed into intestacy. But a rule requiring this result is not discernible from Corbin, Lines or any of the authorities Roberts brings to the Court. A will made and administered in Florida follows Florida s rules for construing testamentary intention. The purpose of construing a will is to give effect to the decedent s intention as expressed in the will. The intention of the testator as expressed in his will controls the legal effect of his dispositions. -22-

29 [Citations omitted.] The intention is every thing; and to this first great rule, in the exposition of wills, all others must bend. st Diana v. Bentsen, 677 So.2d 1374, 1376 (Fla. 1 DCA 1996). Moreover, In construing a will, the whole instrument must be considered, and a review of the entire testamentary scheme must be undertaken.... [T]he intent of the testator as it may be revealed by what he has written... [is] to be measured by the language he selected and used, not in isolated words, clauses or paragraphs, but in the entire instrument from the first letter to the last period. Id., at Roberts entire case arises from her challenge to the last clause in Article Third s first sentence... 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 which she takes out of context of the whole instrument. But for that clause, there is nothing upon which Roberts claim can attach. The Diana court surveys decisions dating back to Lines, and explains that, The contrast between the precatory request and the mandatory direct is properly taken into account in construing the will.... The Lines court identified the true question as whether the intention of the testator is manifest and mandatory. Diana, at The opinion further notes that,... language in a will specifying ( wish ) certain real estate agents to sell estate property was held not binding on the [personal] representative, but rather... only advisory.... [T]he crucial question remains the intent of the testator as made manifest in the will as a whole. Id. Here, Glenn is both PR and devisee, but all of his work as PR has been done; there -23-

30 was nothing for him to do under Article Second, as noted. The Article Third requests to Glenn that he exercise his discretion when he benefits French s never-identified friends is addressed to Glenn as devisee, not as the fiduciary whose work is now finished. Lawyer Burton s Declaration spoke to this issue. As Burton makes clear, French accepted the risk that devisee-glenn might not part with 18 any of his devise. Precatory requests to devisees are nowhere held binding. French closes her Will with the Article Fifth summation clarifying that she is specifically disinheriting all family and friends not named herein. Since anyone might have been named in the Article Second separate writing as a recipient of 16 Since French s omissions left little work for Glenn to perform as PR, which he has now performed, there are no fiduciary duties either remaining or open to question, and cases dealing with such duties are not germane. Also neither germane nor helpful, to anyone, are Roberts cases dealing with cheating lawyers. In both lower courts, as here, Roberts has strained to poison the well with swipes at Glenn and innuendo simply because he is a lawyer. There is no evidence here in any way even hinting at lawyer, fiduciary or personal misconduct by Glenn. 17 Roberts fact statement argues that Glenn s Cross-Motion for Summary Judgment was moot not denied, Init.Br. at 3-4, because its denial was never separately stated. She further argues that this Court should therefore not even consider the supporting papers filed by Glenn with his Cross-Motion, which included the Burton Declaration. However, If the relief sought by a pending motion is inconsistent with the final judgment of the Court, the motion is deemed denied. City of Plant City v. Mann, 400 So.2d 952, 954 (Fla.1981). Both Motions including Glenn s Motion that was so denied, along with their supporting papers climbed the appellate ladder together. 18 Roberts concedes as much in her Petition, R-33, at 29, where she laments that,... once the property was devised to [Glenn] after decedent s death GLENN would be free to take all of said property, free of any oral instructions. -24-

31 personalty, the only logical reading of Article Fifth is that it excludes all persons other than Terry and Pearl Glenn from the residuum not from an Article Second separate writing. Robert s entitlement had she been gifted a piece of jewelry by separate writing to the PR would have been preserved, without any inconsistency with Article Fifth. As Diana further holds, courts should understand the rule,... that when there is an irreconcilable conflict between two clauses of a will pertaining to the same subject matter, the latter clause will prevail as being an expression of the testator s intention So.2d at There is no irreconcilable conflict here, but this Will s latter clause is Article Fifth, the terms of which direct disinheritance of each member of my family and all of my friends, other than those beneficiaries named herein Glenn and his wife. These final words should end discussion about who is to 19 receive the residuum. And Article Third s requests to devisee Glenn precatory or advisory, not mandatory are now moot for never having been made. Even if such requests had been made, the final discretionary call about whom to benefit was to be made not by French but by Glenn, per the words,... friends whom I desire he 19 Roberts wrestles at length with the meaning of named herein, urging that, despite the Article Fifth disinheriting language, she might have been named, or designated by generic class description, as an Article Second intended recipient of personalty. She might have been, and Glenn as PR would of course have been bound to comply. The question is academic, however, where that did not happen. Roberts does not and cannot fault either French or the Will for French s negligent or purposeful omission to exercise her Article Second option. Ordinary logic, with which Lines is in accord, is to simply ignore Article Second, as French apparently did as did the Third District. -25-

32 benefit. Corbin teaches that discretionary testamentary dispositions by the testator must be in writing, but nothing there prevents a testator from asking her PR orally or in writing, in his sole discretion and in his capacity as devisee to make his later gift to a third person. Since no such request was made, the issue is moot as to possible Article Second or Third benefit recipients. And the options French reserved but never exercised should not throw her entire testamentary scheme into a ditch. A close parallel to French s uncompleted plan to call upon Glenn s total discretion to make gifts is found in In re Estate of Lubenow, 146 N.W.2d 166, (N.D. 1966), cited by Roberts and discussed in Sturdevant v. SAE Warehouse, Inc., 270 N.W.2d 794, 800 (N.D.1978), which she also cites. The Lubenow testator left everything to his nephew and nothing to any other family member,... because I have given directions to [the nephew] in this regard. He will see to it that my brothers on the farm, particularly, are provided for. 146 N.W.2d at 167. The probate court held these words created a trust that was void for vagueness, voided the entire will and ordered descent by intestacy as did the probate judge here. The intermediate appellate court (as here) reversed and was upheld by the state supreme court, which found: Subsequent meaningless language in the will cannot destroy the absolute and clear bequest of paragraph Second. What do the words used... do, or try to do? At best, they do no more than express a wish or desire on the part of the testator as to what he would have the executor and devisee do.... This is nothing but the expression of a hope on the part of the testator. He had confidence in Albert (nephew) and felt that Albert -26-

33 Id., at 168. would see to it. Unless the context of a will forces the conclusion that precatory words, or words of request or recommendation, were used in a stronger sense, they cannot be construed as a limitation on an absolute bequest. Roberts labored and extensive analysis of the mandatory / precatory distinction exalts form over substance and needlessly complicates the concepts. It bludgeons the language and conflates the concepts in some places blurs their distinctions in others in an effort to put words in French s Will that are not there, but nonetheless to destroy that paper in the process. It urges that request is a syntactic counterpart of directive, Init.Br., at 15, to turn the paper s language inside out. Especially troubling is Roberts conflating of the first and second sentences of Article Third (quoted in full supra). Terry Glenn was French s first-choice sole residuary devisee, and Pearl was her second. French may well have felt a closer bond with Terry, and may have made her suggestive requests (precatory) to him and more commanding directives (mandatory) to Pearl which would have been French s privilege. Roberts strains to couch these related but separate statements as merged into one and then parses the language to death to rewrite the whole of Article Third. The Third District correctly noted that, since the back-up devise to Pearl was only in the event of Terry s pre-distribution death, and since Terry survives, the back- -27-