CASE NO. SC07- MARIA HERRERA, PETITIONER, RESPONDENT.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC07- MARIA HERRERA, PETITIONER, VS. EDWARD A. SCHILLING, RESPONDENT. BRIEF ON JURISDICTION OF PETITIONER MARIA HERRERA ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL LAW OFFICE OF ROBERT S. GLAZIER LAW OFFICES OF CLARK D. MERVIS 540 BRICKELL KEY DRIVE 1575 SAN IGNACIO AVENUE SUITE C-1 SUITE 100A MIAMI, FL CORAL GABLES, FL

2 TABLE OF CONTENTS Table of Authorities... iii Introduction...1 Statement of the Case and Facts...1 Summary of the Argument...3 Argument...3 THE DECISION OF THE DISTRICT COURT CONFLICTS WITH IN RE ESTATE OF CLIBBON, 735 SO. 2D 487 (FLA. 4TH DCA 1998), AND OTHER CASES WHICH HOLD THAT A PERSONAL REPRESENTATIVE S FAILURE TO GIVE NOTICE TO BENEFICIARIES OF A PRIOR WILL, WHERE THE NOTICE IS NOT REQUIRED BY STATUTE, DOES NOT CONSTITUTE FRAUD THAT WOULD PERMIT REOPENING AN ESTATE AFTER THE DISCHARGE OF THE PERSONAL REPRESENTATIVE Conclusion...6 Certificate of Service and Compliance...7 ii

3 TABLE OF AUTHORITIES All Children s Hospital v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000) 1 DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981) 6 In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998) 3-5 In re Jackson, 236 So. 2d 475 (Fla. 4th DCA 1970) 5-6 Yellen v. Long, 387 So. 2d 384 (Fla. 4th DCA 1980) 6 OTHER AUTHORITIES CITED , Fla. Stat. (1995) 5 iii

4 INTRODUCTION There is a well-established rule of law in Florida. As succinctly described by one district court, personal representative s failure to give notice to beneficiaries of prior will, which notice is not required by statute, did not constitute fraud that would permit reopening estate after discharge of personal representative. All Children s Hospital v. Owens, 754 So. 2d 802, 807 n.5 (Fla. 2d DCA 2000). In this case, the district court of appeal held to the contrary. It held that the failure to give notice to a beneficiary of a prior will did constitute fraud. There is now express and direct conflict among the districts, and the Court should grant review to consider this important issue involving the finality of probate decisions. STATEMENT OF THE CASE AND FACTS The probate court admitted the will of Decedent Helen Schilling to probate, appointed a personal representative, and issued a final order of discharge of the personal representative. (App. 4). The final order of discharge was issued on December 29, (App. 4). Ten months after the final order of discharge, Plaintiff Edward A. Schilling for the first time objected to the Decedent s will. (App. 4). In October 2005 he filed an action in the general jurisdiction of circuit court, including a claim for interference with an expectancy, in which he effectively sought to overturn the ruling of the probate court. 1

5 (App. 4-5). He argued that the will which the decedent (his sister) had executed had been obtained by undue influence, and that he was an heir under a purported prior will. In order to justify his failure to raise his legal arguments in the probate action, the Plaintiff argued that the Defendant had committed fraud by not telling him that his sister had died. (App. 4-5). The Plaintiff alleged that the decedent had been a resident in a rehabilitation facility, and after release from the facility went to live with the Defendant, who had worked at the facility. (App. 3-4). The Plaintiff alleged that the Defendant had failed to return his phone calls, and that the intentional silence was part of a calculated scheme to prevent him from contesting the estate. (App. 4-5). The Plaintiff did not allege that the Defendant had actually misrepresented that his sister was alive, but merely claimed that the Defendant had failed to tell him that his sister had died. (App. 4-5). The trial court ruled for the Defendant, concluding that the Defendant had no duty to notify the Plaintiff that his sister had died. (App. 5-6). The Third District Court of Appeal reversed, holding that the Plaintiff had properly pleaded a fraud claim against the Defendant, based on the Defendant s failure to inform the Plaintiff of his sister s death. (App ). SUMMARY OF THE ARGUMENT The decision of the district court of appeal expressly and directly conflicts with In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998), and other district court decisions. In those cases, the courts held that a party may not collaterally attack a probate 2

6 final judgment on the basis that the party had not been informed of the death or the probate action, where there was no statutory duty to notify the party. ARGUMENT THE DECISION OF THE DISTRICT COURT CONFLICTS WITH IN RE ESTATE OF CLIBBON, 735 SO. 2D 487 (FLA. 4TH DCA 1998), AND OTHER CASES WHICH HOLD THAT A PERSONAL REPRESENTATIVE S FAILURE TO GIVE NOTICE TO BENEFICIARIES OF A PRIOR WILL, WHERE THE NOTICE IS NOT REQUIRED BY STATUTE, DOES NOT CONSTITUTE FRAUD THAT WOULD PERMIT REOPENING AN ESTATE AFTER THE DISCHARGE OF THE PERSONAL REPRESENTATIVE The district court of appeal held that the Plaintiff could collaterally attack the probate final judgment because the Defendant committed fraud in not informing the Plaintiff of the decedent s death. According to the district court, the Plaintiff s complaint alleged fraud stem[ming] from Ms. Herrera s actions in preventing Mr. Schilling from contesting the will in probate court. (App. 11). According to the Plaintiff, the fraud consisted of the Defendant s intentional silence and failure to inform him of the decedent s death. This holding by the Third District is in express and direct conflict with decisions of other district courts of appeal on the same question of law. Those district courts have held that there is no duty to notify a beneficiary of a prior will that the testator has died, and the failure to notify is not a basis for a collateral attack on the probate final judgment. 3

7 The clearest conflict is with In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998). The personal representative of the estate was discharged, after the probate of a will executed in Ten months later, certain claimants alleged that the 1993 will had been executed a few days after the decedent had entered a nursing home. Those claimants attacked the 1993 will, and relied on an earlier will, executed in The claimants filed a petition to reopen the estate, alleging fraud and mistake. The court noted that the claimants allege that the personal representative under the 1993 will did not give notice to the beneficiaries under the 1984 will in order to avoid an attack on the validity of the 1993 will. Id. at 487. The trial court rejected the belated attack on the rulings in the probate action, and the appellate court affirmed. The appellate court noted that the deadline for a petition to revoke probate is the final discharge of the personal representative. The court acknowledged that fraud can be a basis for attacking a closed estate. But the court held that the facts of the case essentially the same facts as this case did not constitute fraud: We do not find that appellants allegations could amount to fraud. The essence of these allegations is that they were not notified of the death or the probate. Section (3), however, does not require notice to be served on devisees of prior wills. It does provide that the personal representative may give notice to devisees under a known prior will (3)(c), Fla. Stat. (1995). Because beneficiaries of prior wills are not required to be given notice under the statute, these allegations are insufficient to constitute the 4

8 type of fraudulent misconduct which would be grounds for reopening an estate. In re Estate of Clibbon, 735 So. 2d at 488 (emphases added). The court noted that Florida has a statute to protect people who are apprehensive that an estate may be administered without their knowledge, which authorizes them to file a caveat which will entitle them to receive notice , Fla. Stat. (1995). The court pointed out that [i]f appellants had availed themselves of this procedure, they would have received notice and could have timely asserted their claim. Id. The opinion of the Third District conflicts with the Clibbon decision, as well as the decisions on which the Clibbon court relied. See In re Jackson, 236 So. 2d 475, (Fla. 4th DCA1970) (day after discharge of personal representative, decedent s son files petition for revocation of probate, alleging that he had neither actual nor constructive notice of the proceeding; court holds that a petition for revocation of probate could not be filed by an heir after final discharge of the personal representative, even though such heir had no notice of the probate proceedings. ); Yellen v. Long, 387 So. 2d 384, 384 (Fla. 4th DCA 1980) ( the applicable statutes do not require that notice be given to heirs not named in a will. The absence of notice is therefore not relevant to a determination of timeliness in this context. ). This Court has noted that [t]he state has an undeniable interest in settling title to property passing through probate. DeWitt v. Duce, 408 So. 2d 216, 220 (Fla. 1981).The 5

9 opinion of the district court dangerously undermines the finality of judgments in probate. The Court should exercise its jurisdiction to resolve the conflict among the district courts of appeal. CONCLUSION For the reasons stated above, we respectfully request that the Court exercise its discretionary jurisdiction over this case. Respectfully submitted, LAW OFFICE OF ROBERT S. GLAZIER LAW OFFICES OF CLARK D. MERVIS 540 Brickell Key Drive 1575 San Ignacio Avenue Suite C-1 Suite 100A Miami, FL Coral Gables, FL By: By: Robert S. Glazier Clark D. Mervis Fla. Bar No Fla. Bar No CERTIFICATE OF SERVICE AND COMPLIANCE We hereby certify that a copy of this Answer Brief was served by U.S. Mail on this 2nd day of May, 2007, to Adrian P. Thomas, Esq., and Brandan J. Pratt, Esq., Adrian Philip Thomas, P.A., SunTrust Center, 515 East Las Olas Boulevard, Suite 850, Fort Lauderdale, FL

10 We hereby certify that this brief is in Times Roman 14 point, and in compliance with the type requirements of the Florida Rules of Appellate Procedure. 7