Rocke v. American Research Bureau ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In re Estate of Virginia E. Murphy. )
)
___________________________________ )
)
JACQUELINE ROCKE, )
)
Appellant, )
)
v. ) Case No. 2D14-4107
)
AMERICAN RESEARCH BUREAU; )
CHARLES FRETWELL; ERWIN )
FRETWELL; JOHN FRETWELL; )
LAURA FRETWELL; SUSAN FRETWELL; )
JAMES WINFIELD FRETWELL; )
VICTORIA FRETWELL SCOTT; JAMES E. )
THURMAN; ALBERT R. WELSH, III, )
as personal representative of the estate )
of Albert R. Welsh, II, )
)
Appellees. )
)
Opinion filed November 6, 2015.
Appeal from the Circuit Court for Pinellas
County; Lauren C. Laughlin, Judge.
Wm. Fletcher Belcher and Angela M.
Adams of Law Offices of Wm. Fletcher
Belcher, St. Petersburg, for Appellant.
Michael R. Kangas of Phillip R. Baumann,
P.A., Tampa, for Appellees James Fretwell;
Erwin Fretwell; Charles Fretwell; Victoria
Fretwell Scott; Susan Fretwell and Laura
Fretwell.
C. Bryant Boydstun, Jr. of Marone Law
Group, PLC, St. Petersburg, for
Appellee James T. Thurman, Jr.
Bonnie S. Satterfield, Coral Springs,
for Appellee American Research Bureau.
Charles W. Gerdes and Brandon S.
Vesely, St. Petersburg, of Keane,
Reese, Vesely & Gerdes, P.A.,
for Appellee Albert E. Welsh, III as
Personal Representative of the Estate of
Albert E. Welch, II.
LUCAS, Judge.
At the age of 107, Virginia E. Murphy passed away, leaving behind an
estate worth nearly twelve million dollars, a series of wills, a phalanx of potential heirs—
and extensive litigation. Following a trial, appeal, and remand from this court, the
probate court entered an order in which it concluded that the vast majority of Mrs.
Murphy's estate should pass through intestacy. For the reasons explained below, we
are compelled to reverse the probate court's order following remand because it failed to
apply the presumption of dependent relative revocation to Mrs. Murphy's last will.
I.
A.
Born in 1899, Virginia Murphy died on September 6, 2006, after more than
a decade of declining health and acuity. Her parents and husband predeceased her,
and she had no children or siblings. In the years before her passing, Mrs. Murphy
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executed a number of wills prepared by her longtime attorney, Jack S. Carey, including
her last will and testament dated February 2, 1994 ("1994 will"). When Mrs. Murphy
died, Mr. Carey filed a Petition for Administration submitting the 1994 will to probate.
The 1994 will named Mr. Carey as personal representative of Mrs. Murphy's estate; and
it purported to leave the bulk of that estate to Mr. Carey, Gloria DuBois (Mr. Carey’s
legal assistant), and George Tornwall (Mrs. Murphy’s accountant, who died the year
before Mrs. Murphy passed away).
Upon learning of the probate proceedings, Mrs. Murphy's second cousin,
Jacqueline "Jackie" Rocke, a devisee under one of Mrs. Murphy's prior wills, filed an
objection to the residuary devises in the 1994 will. In her objection, Ms. Rocke alleged
undue influence on the part of Mr. Carey and Ms. DuBois over Mrs. Murphy. The case
proceeded through discovery, motion hearings, and pleading amendments, all of which
focused primarily on the litigants' competing claims as potential devisees of the estate.
The probate court held a multi-day trial in February 2008 on Ms. Rocke's
objection to the 1994 will. During the trial, several prior wills executed by Mrs. Murphy
were discussed at length. We briefly summarize the testamentary schemes set forth in
the last six of Mrs. Murphy's wills that were admitted into evidence below,1 as they are
all pertinent to this appeal:
May 10, 1989 Will ("1989 Will")
1
In the interest of brevity, these summaries do not include all of the wills'
specific bequests to various charities and caregivers (which were numerous and
relatively minor in proportion to the residuary of the estate) but only those germane to
this appeal. It appears Mrs. Murphy executed other wills prior to these six, but none of
them were made a part of the record in this appeal. None of Mrs. Murphy's last six wills
contained a survivorship clause with respect to any beneficiary or devisee.
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This will, the earliest of the wills admitted into evidence, included a specific
bequest to Ms. Rocke in the amount of $150,000 and specific bequests to Mr. Tornwall,
Mr. Carey, and Ms. DuBois in the amount of $50,000 each, and devised the entire
residuary of the estate to Northwestern University's medical school.
June 11, 1991 Will ("1991 Will")
This will contained specific bequests to the Northwestern University
medical school in the amount of $500,000, Ms. Rocke in the amount of $400,000, and
Mr. Tornwall, Mr. Carey, and Ms. DuBois in the amount of $100,000 each, with the
residuary of the estate divided in equal fourths between Ms. Rocke, Mr. Tornwall, Mr.
Carey, and Ms. DuBois.
February 4, 1992 Will ("February 1992 Will")
This will, nearly identical to the 1991 will, also contained specific bequests
to Northwestern University's medical school in the amount of $500,000, Ms. Rocke in
the amount of $400,000, and Mr. Tornwall, Mr. Carey, and Ms. DuBois in the amount of
$100,000 each, while the residuary of the estate was divided in equal fourths between
Ms. Rocke, Mr. Tornwall, Mr. Carey, and Ms. DuBois. Ms. Rocke argued below and on
appeal that this will's residuary devises (excluding Mr. Carey, Mr. Tornwall, and Ms.
DuBois's devises) should have been the controlling testamentary scheme for probate of
the residuary estate.
August 25, 1992 Will ("August 1992 Will")
This will included specific bequests to the medical school of Northwestern
University in the amount of $500,000, Ms. Rocke in the amount of $400,000, and Mr.
Tornwall, Mr. Carey, and Ms. DuBois in the amount of $100,000 each, but the residuary
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of the estate was now divided into equal thirds between Mr. Tornwall, Mr. Carey, and
Ms. DuBois.
January 29, 1993 Will ("1993 Will")
The 1993 will contained specific bequests to Northwestern University's
medical school in the amount of $500,000, Ms. Rocke in the amount of $400,000, Ms.
DuBois in the amount of $150,000, and Mr. Tornwall and Mr. Carey in the amount of
$100,000 each. The residuary of the estate was devised in equal thirds between Mr.
Tornwall, Mr. Carey, and Ms. DuBois.
1994 Will
This will, like the 1993 will, included specific bequests to Northwestern
University's medical school in the amount of $500,000, Ms. Rocke in the amount of
$400,000, Ms. DuBois in the amount of $150,000, and Mr. Tornwall and Mr. Carey in
the amount of $100,000 each. The residuary of the estate was again devised in equal
thirds between Mr. Tornwall, Mr. Carey, and Ms. DuBois.
In addition to these testamentary documents, the probate court also
considered the testimony of Mr. Carey, Ms. DuBois, Ms. Rocke, and other witnesses
who had been involved with Mrs. Murphy's estate planning. By nearly all accounts, Mrs.
Murphy maintained few personal relationships in the final decades of her life; she never
knew anyone in her extended family other than Ms. Rocke, with whom she had enjoyed
a close, social relationship since the early 1960's. Over time, Mr. Carey and Ms.
DuBois built their own relationship with Mrs. Murphy (Ms. DuBois would eventually
manage Mrs. Murphy's day-to-day finances for several years) founded upon Mr. Carey's
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service as her counsel. While Mrs. Murphy's health and mental awareness diminished,
Mr. Carey and Ms. DuBois' share of the estate grew under the wills Mr. Carey drafted.
After the conclusion of the trial, on August 1, 2008, the probate court
entered its Order on Objection to Petition for Administration and Order Admitting Will to
Probate ("Order on Objection"). The Order on Objection included thorough and detailed
findings that Mr. Carey and Ms. DuBois had, in fact, exerted undue influence through
their confidential, fiduciary, and personal relationships with Ms. Murphy in order to
become residuary devisees of her estate.2 The probate court further concluded that the
residuary devises in the 1994 will were void but that "[t]he remainder of the provisions of
the will are valid and shall control the disposition of the assets specifically devised."
The court then admitted the 1994 will to probate, excluding its residuary devises, and
ordered that "the rest, residue and remainder [of the estate] shall pass by the laws of
intestate succession" as a lapsed gift.
Implicit in the probate court's determination was that the 1994 will's
revocation clause, revoking all of Mrs. Murphy's prior wills, remained valid, so that the
vast majority of Mrs. Murphy's estate would now pass to her intestate heirs who were,
2
We need not recount all of the probate court's findings of undue
influence—which were quite extensive—but would echo the court's sense of puzzlement
as to why Mr. Carey, an esteemed lawyer and a former city councilman, FBI agent, and
Army Air Corps veteran, succumbed to the temptation to pursue a pecuniary windfall at
the expense of a frail and susceptible client. Sadly, the pall of this case cast a long
shadow over an otherwise exemplary professional reputation. Cf. Fla. R. Prof. Conduct
4-1.8(c) ("A lawyer shall not . . . prepare on behalf of a client an instrument giving the
lawyer . . . any substantial gift unless the lawyer . . . is related to the client."). We make
this observation not to impugn the memory of Mr. Carey, who passed away in 2014, but
to state this simple point: the repercussions from a single ethical lapse may carry far
beyond a lawyer's license to practice law.
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as yet, still unknown. Suffice it to say, none of the litigants were particularly satisfied
with that result.
B.
Mr. Carey and Ms. DuBois appealed the Order on Objection, and Ms.
Rocke filed a cross-appeal, arguing that the probate court should have effectuated her
residuary devise in the February 1992 will under the doctrine of dependent relative
revocation. In Carey v. Rocke, 18 So. 3d 1266 (Fla. 2d DCA 2009), this court affirmed
the probate court's determinations in every regard, except its decision to administer the
residue of Mrs. Murphy's estate through intestacy. As to the residuary disposition, we
pointed the probate court's attention to the doctrine of dependent relative revocation,
citing the Fifth District's decision in Wehrheim v. Golden Pond Assisted Living Facility,
905 So. 2d 1002 (Fla. 5th DCA 2005). We noted that we could not determine whether
the doctrine's presumption applied based on the record then before us and that "the
decision as to whether the residuary clause in one of Mrs. Murphy's prior wills is
enforceable necessarily requires factual determinations in this case." Rocke, 18 So. 3d
at 1267. We then remanded the case to the probate court for further proceedings to
make those factual determinations. Id.
Unfortunately, the proceedings on remand appear to have taken a
somewhat unusual turn. Rather than convene an evidentiary hearing, the probate court,
apparently proceeding under the mistaken assumption that it had only been asked to
clarify whether it had considered the doctrine of dependent relative revocation, entered
an Order on Remand dated March 12, 2010. Relying solely on the wills that had been
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admitted at the prior trial, and without identifying the potential intestate heirs, the
probate court concluded that the doctrine of dependent relative revocation did not apply.
In its order, the probate court briefly traced the history of the doctrine of
dependent relative revocation and provided its view of various cases and law review
articles interpreting the doctrine. But the court felt bound to discern Mrs. Murphy's intent
solely from the testamentary instruments and without consideration of extrinsic evidence
such as the testimony from the prior trial, a task which, it allowed, presented a difficult
challenge. The probate court determined that the doctrine was not applicable because
of what it deemed "dramatic" changes between the residuary devises throughout Mrs.
Murphy's last six wills and the lack of evidence either that "the decedent's intent to
revoke her preceding wills was equivocal or conditional" or that she intended to revive
any prior will by republication. The probate court clarified its previous finding,
concluding that the undue influence that permeated the residuary clause of the 1994 will
had not tainted that will's revocation clause. It then observed, "the inference that
decedent would have preferred probate of the residuary clause in the February 1992
Will over intestacy is purely speculative." Finally, the probate court opined that "to
adopt any of the five residuary clauses [from the prior wills], all unreflective of the
testator's intent, would require this court to speculatively re-draft the testatrix's will." The
court again ordered that Mrs. Murphy's residuary estate should pass through intestacy.
It would take another four years before the probate court was able to
effectuate that ruling and render a final order disposing of Mrs. Murphy's estate. The
delay was likely attributable to the task of tracing all of Mrs. Murphy's ancestry.
Eventually, an heir search firm identified and located forty-eight heirs through Mrs.
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Murphy's deceased grandparents. Most of these heirs were spread across the United
States and, apparently, completely unaware of their familial connection to Mrs. Murphy.
With this information, but still without convening an evidentiary hearing, the probate
court entered a Final Order Determining Beneficiaries and Respective Shares on July
28, 2014, implementing an intestate succession plan pursuant to section 732.103,
Florida Statutes (2006). Ms. Rocke then initiated this appeal.
II.
The issues in this appeal present mixed questions of law and fact. The
application of an evidentiary presumption such as the doctrine of dependent relative
revocation is an issue of law subject to a de novo standard of review. Universal Ins. Co.
of N. Am. v. Warfel, 82 So. 3d 47, 57 (Fla. 2012). Whether or to what extent the
predicate facts giving rise to a legal presumption or its rebuttal were established is an
issue of fact, which we review for competent, substantial evidence. Conahan v. State,
118 So. 3d 718, 727 (Fla. 2013).
III.
We begin by examining the legal construct at the heart of this appeal, the
doctrine of dependent relative revocation. Founded in the common law of early
eighteenth century England, the doctrine was first adopted by the Florida Supreme
Court, which explained:
This doctrine has been stated and reiterated by many courts
since it was first expounded in 1717, but stated simply it
means that where [a] testator makes a new will revoking a
former valid one, and it later appears that the new one is
invalid, the old will may be re-established on the ground that
the revocation was dependent upon the validity of the new
one, [the] testator preferring the old will to intestacy.
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Stewart v. Johnson, 194 So. 869, 870 (Fla. 1940) (citation omitted). Grounded in the
axiom of probate law that intestacy should be avoided whenever possible,3 the doctrine
of dependent relative revocation, our court has observed, is "a rule of presumed
intention" that creates a rebuttable presumption that the testator would have preferred to
have a prior will effectuated over statutory intestacy. In re Lubbe's Estate, 142 So. 2d
130, 134 (Fla. 2d DCA 1962), overruled on other grounds by In re Johnson's Estate,
359 So. 2d 425 (Fla. 1978). The presumption's application hinges on whether "the
provisions of the present invalid will are sufficiently similar to the former will."
Wehrheim, 905 So. 2d at 1008 (citing Stewart, 194 So. at 871-72); Lubbe, 142 So. 2d at
135 ("The proper application of the doctrine depends upon a sufficient showing that the
provisions of the invalid will are not materially different from the prior will and that the
testator must have intended to revoke his prior will only if his new will were valid."). In
cases of undue influence, if a prior will is sufficiently similar to an invalidated will then
the presumption arises but may be rebutted by evidence that "the revocation clause was
not invalidated by undue influence and that it was not intended by the decedent to be
conditional on the validity of the testamentary provisions" of the will. Wehrheim, 905 So.
2d at 1009-10; cf. § 732.5165 (stating any part of a will procured by fraud, duress,
3
See, e.g., In re Gregory's Estate, 70 So. 2d 903, 907 (Fla. 1954) ("If the
terms of a will are such as to permit two constructions, one of which results in intestacy
and the other of which leads to a valid testamentary disposition, the construction is
preferred which will prevent intestacy."); 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."); In re Mullin's Estate,
133 So. 2d 468, 471 (Fla. 2d DCA 1961) ("A construction which results in partial
intestacy should not be used unless it clearly appears that such was intended."); In re
Estate of Baer, 446 So. 2d 1128, 1128 (Fla. 4th DCA 1984) ("[T]he law abhors
intestacy.").
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mistake or undue influence is void, "but the remainder of the will not so procured shall
be valid if it is not invalid for other reasons").
With this framework, then, the proper analysis in this case on remand
should have proceeded along the following sequence: (i) did Ms. Rocke establish
sufficient similarity between Mrs. Murphy's wills that would have given rise to the
doctrine of dependent relative revocation; (ii) if so, were there sufficient record facts to
overcome that presumption so that the 1994 will's revocation clause could withstand;
and (iii) if not, if the presumption remained intact, which, if any, will or residuary devise
in Mrs. Murphy's prior wills reflected her true testamentary intention? It appears to us
that the probate court focused too closely on this third analytical step to the point of
conflating it with the first two. That was error. We must examine each step in its proper
turn.
A.
In order to give rise to the presumption that the 1994 will's revocation
clause was conditioned upon the validity of its testamentary devises, Ms. Rocke had to
establish that Mrs. Murphy's prior, revoked wills were "sufficiently similar" to the 1994
will. Wehrheim, 905 So. 2d at 1008. Ms. Rocke argues that, when viewed broadly and
without regard to the devises to Mr. Carey and Ms. DuBois, the overall dispositional
plan of the wills remained fairly constant. She also points to the execution of so many
wills over the years, which, Ms. Rocke posits, was proof of Mrs. Murphy's preference to
leave her property through testacy. Finally, Ms. Rocke contends that the extrinsic
evidence presented to the probate court lent further proof that the revocation clause in
the 1994 will was also the product of Mr. Carey and Ms. DuBois' undue influence – and
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that Mrs. Murphy would have never intended to leave the bulk of her estate to a
collection of individuals she had never met or known. The appellees disagree that there
was any similarity between the wills, focusing on the fact that Ms. Rocke was only a
residuary devisee in two of Mrs. Murphy's last six wills, and that the bequests and
devises to Ms. Rocke varied from will to will. Furthermore, according to the appellees,
the probate court was precluded from considering any extrinsic evidence apart from the
testamentary documents themselves in deciding whether Mrs. Murphy's wills were
sufficiently similar to implicate the doctrine of dependent relative revocation.
The discrete point of contention here is one of measurement. Somewhere
in the conceptual space between "identical" and "antithetical" resides "similar," and the
parties disagree where its boundaries should be marked for this kind of case. One
could draw the notion of sufficient similarity between wills broadly or narrowly. Florida
courts have seldom expounded upon the issue,4 but in the context of undue influence
we would incline toward a broader definition of similarity, one that takes into account the
testamentary instruments themselves and any admissible evidence that may be
relevant. We do so for several reasons.
1.
Unlike cases where a will has been invalidated for an impropriety with its
execution, see In re Lubbe's Estate, 142 So. 2d 130 (interested beneficiary acted as
witness), or a legal impediment exists that precludes the execution of a testator's
wishes, see In re Pratt's Estate, 88 So. 2d 499 (Fla. 1956) (charitable residuary devise
4
Cf. Rosoff v. Harding, 901 So. 2d 1006, 1008-09 (Fla. 4th DCA 2005)
("Although centuries old, few Florida cases have applied the doctrine of dependent
relative revocation.").
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violated Florida's now-repealed Mortmain statute), cases where there is no serious
question about the testator's intent (only the legal efficacy of his or her testamentary
documents), in cases of undue influence, the decedent's intent has been impaired,
destroyed, or overridden by someone else. See RBC Ministries v. Tompkins, 974 So.
2d 569, 571 (Fla. 2d DCA 2008). The undue influence effectively grafts a different
disposition or scheme into a testamentary instrument than would have otherwise been
created. Cf. Peacock v. DuBois, 105 So. 321, 322 (Fla. 1925) ("The rule seems to be
well settled that undue influence justifying the setting aside of will, deed, or other
contract must be such as to dethrone the free agency of the person making it and
rendering his act the product of the will of another instead of his own."). Keeping in
mind that the requirement of sufficient similarity serves to ensure the indicia of the
testator's intent, any construction of similarity must necessarily account for the intrusion
of another's intentions in cases of undue influence. A broad construction of similarity
does so.
We also find support for a broad construction of the doctrine's similarity
requirement from the Fifth District's decision in Wehrheim. In Wehrheim, a decedent's
last will submitted to probate named her assisted living facility as the primary beneficiary
of her estate. 905 So. 2d at 1006. The decedent's children initiated adversary
proceedings, alleging undue influence on the part of the facility. Id. In response, the
facility argued that under the doctrine of dependent relative revocation the children
would have no standing to challenge the will because none of them were named as
beneficiaries within any of the decedent's prior three wills. Id. While reversing the trial
court's summary judgment in favor of the facility, the Fifth District rejected the children's
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argument that the doctrine of dependent relative revocation could not apply because the
prior wills were not sufficiently similar to one another. Id. at 1009. The Wehrheim court
offered this analysis of the similarity between the instruments:
The Wehrheims contend that the 2002 will is not sufficiently
similar to the prior wills because the decedent had never
before made a charitable devise of her estate. . . . While the
charitable devise may be a difference between the 2002 will
and the prior wills, we discern a very significant similarity
among all of the decedent's wills, which is her intention not
to devise any portion of her estate to her children. Based on
this similarity, we are unable to say that the presumed
preference of the decedent for her prior dispositions and for
testacy over intestacy has been rebutted.
Id. at 1008.
In its comparison, the Wehrheim court gave passing consideration to the
specific beneficiaries in any of the wills at issue. Rather, the court found sufficient
similarity for the doctrine's application simply from noting who was not a beneficiary
under any of the wills. The absence of the decedent's children was enough of a
common thread to construe a similar testamentary intent between all of the decedent's
wills. We agree with the Fifth District's broad conception of similarity for cases involving
undue influence, as it furthers the doctrine of dependent relative revocation's underlying
purpose of promoting testacy over intestacy whenever possible. See In re Gregory's
Estate, 70 So. 2d 903, 907 (Fla. 1954); Dutcher v. Estate of Dutcher, 437 So. 2d 788,
789 (Fla. 2d DCA 1983); In re Estate of Baer, 446 So. 2d 1128, 1128 (Fla. 4th DCA
1984); cf. In re Estate of Dunson, 141 So. 2d 601, 604 (Fla. 2d DCA 1962) ("The right to
dispose of one's property through the instrumentality of a will is highly valuable, and it is
the policy of the law to hold a will good wherever possible."). Indeed, to hold otherwise,
to apply an overly strict or narrow construction of similarity, would likely consign the
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doctrine of dependent relative revocation to a minute corner of irrelevance for cases of
undue influence. We see no reason to corral the presumption for this class of cases.
2.
But we must part company with the Fifth District insofar as Wehrheim
would preclude a probate court from considering extrinsic evidence when deciding the
doctrine's applicability in claims involving undue influence. Wehrheim, 905 So. 2d at
1008 (noting that a court "must confine its inquiry to the testamentary documents before
it without resort to extrinsic evidence"). In determining whether testamentary
instruments are sufficiently similar for purposes of the doctrine of dependent relative
revocation, a court should always look first to the documents themselves. Brickell v.
DiPietro, 198 So. 806, 810-11 (Fla. 1940) ("It is the duty of the court to give effect to the
intention of the testator where it can be ascertained and determined from the four
corners of the will."). However, in cases of undue influence, its analysis cannot simply
end there.
Extrinsic evidence may be essential in order to grasp the true
testamentary intentions of a testator who has left multiple wills, some of which may or
may not have been affected, to some degree, by another's undue influence. Cf.
Marshall v. Hewett, 24 So. 2d 1, 2 (Fla. 1945) (noting that where a will's expressions are
difficult to reconcile, "then the situation of the testator at the time he made his will, the
ties that bound him to the objects of his beneficence, the motives that prompted him to
make the will he did make, and the influences that wrought on him at the time, will be
considered in arriving at the purpose of the testator"); In re Dickson's Estate, 590 So. 2d
471, 473 (Fla. 3d DCA 1991) ("Whenever the question is raised as to whether or not
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there has been a revocation by any destruction or obliteration, parol and other extrinsic
evidence is necessarily admissible to show what acts were done by the testator and
what his intentions were." (quoting Leighton v. Harmon, 111 So. 2d 697, 700 (Fla. 2d
DCA 1959))). Without resort to extrinsic evidence, a proponent for the doctrine's
presumption may have no viable means of showing sufficient similarity between the
tainted and untainted portions of testamentary documents and an adverse party would
never have a way to rebut the presumption. Cf. In re Lubbe’s Estate, 142 So. 2d at 135
("In the absence of evidence overcoming the presumption, the prior will may be
admitted to probate if its contents can be ascertained." (emphasis supplied)).
Furthermore, we believe the Fifth District's rule misconstrues Florida
precedents on this evidentiary point. In its mention of an extrinsic evidence bar, the
Wehrheim court cited the Florida Supreme Court's decision in In re Pratt’s Estate, 88
So. 2d 499, and the First District's case of In re Barker's Estate, 448 So. 2d 28 (Fla. 1st
DCA 1984). Neither of those cases involved a claim of undue influence.5 The Barker
court's application of the evidentiary prohibition stemmed from the fact that the extrinsic
evidence (an attorney's affidavit) purported to cast doubt on whether the testator had
meant to sign a particular version of a will, which was the threshold issue of the will
contest in that case. 448 So. 2d at 29. In Pratt, 88 So. 2d at 503, the Florida Supreme
Court seemed to imply that extrinsic evidence might, in fact, be categorically appropriate
for cases of undue influence:
The case before us is one wherein the testator, by an
unambiguous, complete testamentary instrument, has
5
We have found no other published decision in which any state's court has
barred consideration of extrinsic evidence when confronted with the question of whether
the doctrine of dependent relative revocation should apply in a case of undue influence.
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disposed of all of his property, expressly revoking all prior
wills. There is no suggestion of fraud or undue influence.
There are no conflicting provisions of testamentary papers
necessarily before the court, as in the case of a will and
codicils, which might form a basis for the admission of parol
evidence for its bearing upon the testamentary intent.
(First emphasis supplied); see also Stewart, 194 So. at 871 ("But the material inquiry in
all cases is, whether the destruction of the will was animo revocandi, and to determine
this it is necessary to consider the circumstances under which and the purposes and
reasons for which it was destroyed; and where from all the circumstances in evidence it
appears that the destruction or revocation was connected with, or because of, the
execution of another will, and that the testator meant the revocation of the one to
depend upon the validity of the other . . . .").
We find no reason to erect a barrier between admissible evidence and the
task of sifting similarities between wills that have been affected by undue influence.
Rather, we join the courts of our sister states to hold that, in cases involving undue
influence, a probate court is not confined to the testamentary documents when
determining whether the doctrine of dependent relative revocation should apply. See
Estate of Anderson, 56 Cal. App. 4th 235, 247-49 (Cal. Ct. App. 1997) (observing that
questions of ambiguity or revocation of a will permit consideration of extrinsic evidence;
"[a]pplying these principles, we conclude that extrinsic evidence may be considered in
determining whether Anderson conditioned the revocation of the first will on the exercise
of the power of appointment in De Paul's favor" (citing In re Kaufman's Estate, 155 P.2d
831 (Cal. 1945))); In re Estate of Anthony, 121 N.W.2d 772, 779 (Minn. 1963)
(remanding case to district court "to receive whatever extrinsic evidence of the testator's
intention may be available"). Upon a finding of undue influence, a probate court may
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consider any relevant, admissible evidence to decide if the testator intended a will's
revocation clause to be conditional upon the will's efficacy.
3.
Comparing Mrs. Murphy's wills in the appropriately broad light, and in the
light of all the evidence, we find there were sufficient similarities between Mrs. Murphy's
1994 will and her prior wills to support the application of the doctrine of dependent
relative revocation to the 1994 will. We discern several contours of similarity that were
unrefuted in the record.
First, Mrs. Murphy's execution of six wills over a period of five years
evidences a sustained concern about the disposition of her property upon her death.
Mrs. Murphy prized her right to dictate how her property should be divided, and she
exercised that right, repeatedly, in the final years of her life. No one seriously disputes
that she preferred testacy over intestacy. And that is, of course, the very foundation for
the doctrine of dependent relative revocation's application. See Stewart, 194 So. at
870.
Moreover, the testamentary documents themselves evince an overall
pattern of similarity. Each of Mrs. Murphy's wills employed a similar testamentary
scheme in which Mrs. Murphy made numerous specific bequests to charities and
caregivers while limiting the division of the residuary of her estate to a few devisees.
Although their respective proportions varied from will to will, the identities of the
devisees and beneficiaries within the six wills, overall, remained fairly constant. Indeed,
in its Order on Remand, the probate court observed, "over the course of six wills, the
changes in specific bequests were insubstantial." The variance the probate court fixed
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upon, the alteration of residuary devisees, is likewise modest once the effect of Mr.
Carey and Ms. DuBois' undue influence is properly taken into account. When Mr. Carey
and Ms. DuBois are removed from consideration, there is only one change between the
six wills' residuary clauses that did not involve Mr. Carey or Ms. DuBois' illicit gain over
the residuary estate: the change between the 1989 will and the 1991 will, which
exchanged Northwestern University's medical school and Ms. Rocke's respective
positions as a specific beneficiary and a residuary devisee. For her part, Ms. Rocke
appeared repeatedly throughout Mrs. Murphy's wills, either as a residuary devisee, a
designee of a specific bequest, or both.
Finally, the extrinsic evidence proffered before the probate court further
demonstrated the appropriateness of applying the presumption in this case. With the
exception of four individuals, including Ms. Rocke, none of the forty-eight intestate heirs
ultimately identified in the Final Order Determining Beneficiaries and Respective Shares
were mentioned within any of Mrs. Murphy's six wills. In contrast to the close
relationship she had with Ms. Rocke, it appears Mrs. Murphy never knew her intestate
heirs, and they never knew her. The intestate heirs' ancestral ties to Mrs. Murphy
apparently remained forgotten until this litigation (and an heir search firm) brought them
to light. Intestacy, in this case, would usurp the repeated testamentary dispositions of
Mrs. Murphy's property throughout her wills, dispositions that were invariably tied to
individuals she cared about or charities and institutions which she supported. Cf. In re
Jones' Estate, 352 So. 2d 1182 (Fla. 2d DCA 1977) (applying doctrine because
testator's wills demonstrated a strong aversion to intestacy by their expressed intention
to disinherit the decedent's daughter). We hold, as a matter of law, that Mrs. Murphy's
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six wills were sufficiently similar to give rise to the doctrine of dependent relative
revocation's presumption.
B.
Having determined that the doctrine of dependent relative revocation
should have been applied to the 1994 will, we next consider whether there were
sufficient facts to rebut the doctrine's presumption. Before answering this query, we
pause to explain briefly what this presumption, and its rebuttal, would entail in a case
such as this.
The Florida Evidence Code codifies the application of legal presumptions
for civil actions in Florida. See Warfel, 82 So. 3d at 53. Specifically, section 90.301(1),
Florida Statutes (2006), defines a presumption as "an assumption of fact which the law
makes from the existence of another fact or group of facts found or otherwise
established." The Florida Statutes describe two potential classifications of rebuttable
presumptions as follows:
Every rebuttable presumption is either:
(1) A presumption affecting the burden of producing
evidence and requiring the trier of fact to assume the
existence of the presumed fact, unless credible evidence
sufficient to sustain a finding of the nonexistence of the
presumed fact is introduced, in which event, the existence or
nonexistence of the presumed fact shall be determined from
the evidence without regard to the presumption; or
(2) A presumption affecting the burden of proof that imposes
upon the party against whom it operates the burden of proof
concerning the nonexistence of the presumed fact.
§ 90.302.
In a civil action or proceeding, unless otherwise provided by
statute, a presumption established primarily to facilitate the
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determination of the particular action in which the
presumption is applied, rather than to implement public
policy, is a presumption affecting the burden of producing
evidence.
§ 90.303.
The Florida Probate Code clarifies that presumptions arising from undue
influence "implement public policy" that justify shifting the entire burden of proof when a
presumption arises. § 733.107(2), Fla. Stat. (2014) ("In any transaction or event to
which the presumption of undue influence applies, the presumption implements public
policy against abuse of fiduciary or confidential relationships and is therefore a
presumption shifting the burden of proof under ss. 90.301-90.304."); see also Hack v.
Janes, 878 So. 2d 440, 443 (Fla. 5th DCA 2004) ("The 2002 amendment to section
733.107, adding subsection 2, was intended to incorporate sections 90.301-90.304 of
the Florida Evidence Code, and require a shifting of the burden of proof after the
presumption of undue influence arises in a will contest."). Thus, the doctrine of
dependent relative revocation, when applied in a case of undue influence, shifts the
burden of proof to the parties opposing its application.
It was incumbent, then, upon any party opposing the presumption to prove
that the 1994 will's revocation clause was untainted by the same undue influence that
infected its residuary clause and that Mrs. Murphy held an independent, untainted
intention to revoke all of her prior wills at the time she executed the 1994 will so that the
bulk of her estate would pass by intestacy. See Wehrheim, 905 So. 2d at 1009-10
(noting the "daunting task" of refuting the doctrine's presumption in a case where undue
influence had been established). No such showing was ever made here. This will's
revocation clause, an otherwise unremarkable example of boilerplate testamentary
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language, contains no statement of an intent to sever its application from the rest of the
will. Nor did the probate court elucidate any independent, factual basis to support its
conclusion that the undue influence that permeated the residuary clause of the 1994 will
somehow left its revocation clause untouched. Our review of the record has found no
evidence that would support such a counterintuitive conclusion. Quite the contrary, the
presumption appears particularly apt in this case, as one of the individuals found to
have unduly influenced Mrs. Murphy, Jack Carey, drafted both the residuary clause and
the revocation clause of the 1994 will and stood to gain from both of those clauses'
execution.
The presumption that arose from the doctrine of dependent relative
revocation was never rebutted in the proceedings below. The revocation clause within
the 1994 will should, therefore, have been deemed invalid, as it was dependent upon
the effectiveness of that will's invalid residuary clause.
C.
Stripping the undue influence that spanned the residuary devises of Mrs.
Murphy's last six wills leaves two, alternative residuary devises that remained untainted:
the medical school of Northwestern University or Ms. Rocke. Northwestern University
would receive the entire residuary of Mrs. Murphy's estate under the express provision
of the 1989 will. Ms. Rocke would stand to receive all of the residuary estate by
operation of law under the February 1992 will as the only remaining residuary devisee in
that will. See § 732.5165 (any part of a will procured by undue influence is void, "but
the remainder of the will not so procured shall be valid if it is not invalid for other
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reasons"). The question then becomes which devise from which will should determine
the disposition of the residuary estate.
From our review of the evidence proffered below,6 the February 1992 will's
residuary clause, which includes the last, untainted residuary disposition Mrs. Murphy
made, controls the disposition of her residuary estate. See § 732.5165. Although it is
true Mr. Carey and Ms. DuBois procured part of the February 1992 will's residuary
clause through their illicit efforts, the probate court made no finding—as, indeed, no one
has ever argued—that Ms. Rocke was, in any way, associated with that exertion of
undue influence over Mrs. Murphy. The February 1992 will would remain perfectly
intelligible and true to Mrs. Murphy's repeated indications of preferring testacy over
intestacy, had the probate court excised Mr. Carey and Ms. DuBois' devises and left Ms.
Rocke's to stand. See In re Van Horn's Estate, 305 So. 2d 46 (Fla. 3d DCA 1974)
(affirming devise of entire residue of estate to testator's nephew after testator's guardian
was stricken as a residuary devisee where no connection was ever shown between the
nephew and the guardian's exercise of undue influence over the testator); see also In re
Kiggins' Estate, 67 So. 2d 915, 918 (Fla. 1953) (where one residuary devisee exerted
undue influence over the decedent, but there was "no evidence whatever in the record
to show that [the remaining devisees] at any time were guilty of any misconduct toward
6
The parties have argued the issue of the doctrine of dependent relative
revocation extensively and repeatedly before the probate court; and, notwithstanding
the court's refusal to consider it, they have proffered a substantial amount of testimony
and evidence into the record below. Lest this lawsuit devolve into a Dickensian epic, we
will not delay a final decision about Mrs. Murphy's estate any longer. Cf. J. Sourini
Painting, Inc. v. Johnson Paints, Inc., 809 So. 2d 95, 98 (Fla. 2d DCA 2002) ("Litigants,
and the public generally, have a right to expect that controversies between parties
respecting their rights and liabilities should be expeditiously resolved in our judicial
system.").
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the deceased" their devises were properly upheld). The court must honor the last,
uninfluenced residuary devise Mrs. Murphy made: to her cousin, Jackie Rocke.
IV.
In conclusion, we hold that in cases of undue influence over a testator, the
presumption from the doctrine of dependent relative revocation requires only a showing
of broad similarity between a decedent's testamentary instruments. We further hold that
a probate court may consider any admissible, extrinsic evidence when measuring
similarity for purposes of the doctrine's application. Consistent with sections 90.302(2)
and 733.107(2), we hold that when the doctrine's presumption arises, the burden of
proof then shifts to the opponent of the presumption to show that the testator held an
independent, unaffected intention to revoke the otherwise affected will.
Having clarified the doctrine's application, we find that the presumption
under the doctrine was established here and was not rebutted. The probate court erred
and should have admitted the February 1992 will to probate with Ms. Rocke receiving
the residuary of the estate as the last remaining devisee. Accordingly, we reverse the
order of the probate court and remand with directions to enter an order consistent with
this opinion.
Reversed and remanded.
VILLANTI, C.J., and KELLY, J., Concur.
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