DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALFREDO TENDLER,
Appellant,
v.
KENNETH N. JOHNSON and BRIAN M. MOSKOWITZ,
as Personal Representatives of the Estate of RICHARD TENDLER,
Appellees.
No. 4D20-1341
[December 22, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 502019CP000099.
James R. George and Jenna M. Bottey of Greenberg Traurig, P.A. Fort
Lauderdale, for appellant.
Robert J. Hauser of Pankauski Hauser Lazarus PLLC, West Palm Beach
for appellees.
GROSS, J.
Alfredo Tendler appeals a final summary judgment holding that he was
“time-barred from now challenging the validity” of a will. We reverse
because Tendler’s pleading in the case was not a challenge to the validity
of the will. Tendler accepted the will as valid and entitled to probate.
Rather, Tendler focused on the propriety of a disposition of assets of a
trust by a provision in the will, so his objection fell outside of the scope of
the three-month limitation period provided in section 733.212(3), Florida
Statutes (2018).
Facts
Tendler and the decedent, Richard Tendler (the “Decedent”) were
brothers. In 1992, the Tendlers’ grandfather created a trust to benefit his
family. The Rison Trust derived from that original trust. The Decedent
was the primary beneficiary of the Rison Trust, and the Tendlers’ mother
was the secondary beneficiary.
The Rison Trust provides that, upon the Decedent’s death, the trustee
shall hold the remaining assets in trust for the benefit of Tendler, as the
living child of the secondary beneficiary, unless the Decedent effectively
exercised a limited power of appointment he had over such assets
pursuant to section 5.1 of the Rison Trust.
Section 5.1 of the Rison Trust states:
Limited Power of Appointment. Upon the death of the
[Decedent], the Trustee shall distribute the Trust Fund,
outright or in further Trust, to or for the benefit of such person
or persons, other than the [Decedent], the [Decedent’s]
creditors, the [Decedent’s] estate, or the creditors of the
[Decedent’s] estate (including the giving to any such person or
persons of a general or limited power of appointment if any
principal is continued in further trust) as the [Decedent] shall
appoint, by written instrument specifically referring to this
power, delivered to the Trustee during the [Decedent’s] lifetime
(which appointment shall be revocable prior to the death of
the [Decedent]), or by specific reference in a Will of the
[Decedent].
As Tendler points out in his initial brief, section 5.1 “granted [the]
Decedent a limited power of appointment over the Rison Trust’s assets
which could be exercised in favor of anyone except [the] Decedent, [the]
Decedent’s creditors, [the] Decedent’s estate, or creditors of [the]
Decedent’s estate.”
The Decedent passed away on December 15, 2018. He was not married
and had no descendants. About a month before his death, the Decedent
executed a will and a revocable trust (the “Tendler Trust”). Article 4 of his
will attempts to exercise the limited power of appointment in section 5.1
of the Rison Trust:
Pursuant to Section 5.1 of the Rison Trust . . . I have been
granted a power of appointment over the Trust Fund. I hereby
exercise this power of appointment and direct that all assets
subject to this power of appointment be distributed to the then
serving trustee of my Revocable Trust for the purpose of using
to satisfy the specific gifts set forth in Section 5.2 of my
Revocable Trust and thereafter distributing as part of the
Residuary Trust Estate as set forth in Section 5.3 of my
Revocable Trust.
2
Section 5.2(a) of the Tendler Trust listed monetary gifts to 18
individuals and three exempt organizations. Section 5.3 of the Tendler
Trust, titled “Residuary Distribution,” states:
The Trustee shall distribute the Residuary Trust Estate (and
any assets directed by exercise of a power of appointment in
my Will to be distributed as provided in this Section 5.3) to
the JEWISH FEDERATION OF PALM BEACH COUNTY, INC.,
West Palm Beach, Florida (the “Jewish Federation”) . . . . I
request that the funds be used to support the research on
head and neck cancer being performed by DR. CHRISTINE H.
CHUNG, who is currently with the H. LEE MOFFITT CANCER
CENTER RESEARCH INSTITUTE, Tampa, Florida.
The Decedent exercised the Rison Trust’s limited power of appointment
to appoint the Rison Trust assets to the Tendler Trust in satisfaction of
certain specific gifts and then to the Residuary Trust Estate of the Tendler
Trust.
The Proceedings in the Circuit Court
The Decedent’s will was admitted to probate on January 15, 2019. Two
personal representatives (“the PRs”) were appointed.
On January 28, 2019, Tendler was served with a Notice of
Administration informing any interested person that any objections to the
validity of the will, the venue, or the jurisdiction of the court would be
time-barred if not filed within three months. Tendler filed no such
objections within the three-month limitation period.
PRs’ Petition for Instruction
On October 3, 2019, the PRs filed a Petition for Instruction. The
instruction was needed because the trustee of the Rison Trust had refused
the PRs’ request to transfer all the assets from the Rison Trust to the
Tendler Trust. The Rison trustee questioned the validity of the Decedent’s
exercise of the special power of appointment in article 4 of the will. Tendler
was served with a formal notice of the filing of the Petition for Instruction
that required him to serve written defenses with the PRs’ counsel within
20 days.
In response to this formal notice, Tendler filed an Answer and then an
Amended Answer and Affirmative Defenses to the Petition for Instruction.
Therein, Tendler asserted that the Decedent’s exercise of the limited power
3
of appointment in article 4 of the will was not effective because it attempted
to appoint the assets in a way that those assets could be used to pay the
creditors of the Decedent’s estate, contrary to section 5.1 of the Rison
Trust.
In a Reply to Tendler’s pleading, the PRs argued, among other things,
that Tendler’s claim was untimely because it was not filed within three
months of receipt of the Notice of Administration.
The Competing Motions for Summary Judgment
The PRs moved for summary judgment on the timeliness of Tendler’s
pleading, relying on section 733.212(3), Florida Statutes (2018).
Tendler moved for final summary judgment in his favor. He argued that
the Decedent attempted to exercise his power of appointment by
appointing the Rison Trust assets to first satisfy certain gifts and then to
the residuary trust estate of the Tendler Trust. However, according to the
terms of the Decedent’s will, “the obligations, expenses, and taxes owed by
[the] Decedent’s estate are to be paid in accordance with the terms of [the]
Decedent’s [Tendler] Trust,” and “[the] Decedent’s [Tendler] Trust provides
that such obligations, expenses, and taxes are to be paid from the
Residuary Trust Estate of the [Tendler] Trust.” Therefore, “the Residuary
Trust Estate of the [Tendler] Trust (where [the] Decedent attempted to
appoint the Rison Trust assets) could be used to satisfy the creditors of
the Decedent’s estate.”
The trial court granted the PRs’ motion for summary judgment. 1 The
court reasoned that any objection “challenging the validity of [the]
Decedent’s Will in part or in whole was required to be filed no later than
April 29, 2019.” The court ruled that Tendler first challenged the validity
of the will on October 30, 2019, when he filed his Answer and Affirmative
Defenses to the Petition for Instruction, so his challenge was time-barred
by section 733.212(3).
Tendler’s Challenge to the Decedent’s Attempted Exercise of the
Limited Power of Appointment Was Not a Challenge to the Validity
of the Decedent’s Will Within the Meaning of Section 733.212(3),
Florida Statutes (2018)
1Tendler’s motion for final summary judgment was still pending when the trial
court ruled in favor of the PRs’ motion for summary judgment.
4
We conclude that Tendler’s Amended Answer and Affirmative Defenses
was not a challenge to the validity of the will within the meaning of section
733.212(3). Rather, it challenged the effectiveness of the will’s disposition
of the assets of the Rison Trust, an issue raised in the first instance by the
PRs’ Petition for Instruction.
Florida requires strict compliance with its statutory provisions in the
execution of wills. See § 732.502, Florida Statutes (2018). The “will must
be in writing,” “[t]he testator must sign the will at the end,” the testator
must sign “in the presence of at least two attesting witnesses,” and the
“witnesses must sign the will in the presence of the testator and in the
presence of each other.” § 732.502, Fla. Stat. (2018).
The probate of a will signifies that a will was properly executed and
witnessed, and that the testator had testamentary capacity when
executing the will. § 733.103(2), Fla. Stat. (2018) (“[T]he probate of a will
in Florida shall be conclusive of its due execution; that it was executed by
a competent testator, free of fraud, duress, mistake, and undue influence;
and that the will was unrevoked on the testator’s death.”).
The use of the word “validity” in chapter 733 pertains to the compliance
with the technical requirements of execution—signatures and witnesses—
and to the testamentary capacity of the testator—the required factors for
a will to be probated.
Section 733.107, Florida Statutes (2018), provides that “[i]n [a]
proceeding[] contesting the validity of a will, the burden shall be upon the
proponent of the will to establish prima facie its formal execution and
attestation.” § 733.107(1), Fla. Stat. (2018) (emphasis added).
“Thereafter, the contestant shall have the burden of establishing the
grounds on which the probate of the will is opposed or revocation is
sought.” Id. (emphasis added).
Consistent with section 733.107, section 733.212(3), Florida Statutes
(2018), provides that
[a]ny interested person on whom a copy of the notice of
administration is served must object to the validity of the
will, the venue, or the jurisdiction of the court by filing a
petition or other pleading requesting relief in accordance with
the Florida Probate Rules on or before the date that is 3
months after the date of service of a copy of the notice of
administration on the objecting person, or those objections
are forever barred.
5
(emphasis added). Section 733.212(3)’s use of the term “validity of the
will” relates back to the use of the same term in section 733.107, so it
pertains to the admission of a will to probate or a revocation of probate.
Here, Tendler challenges not the validity of the will but the effectiveness of
the Decedent’s attempted exercise of the Rison Trust’s limited power of
appointment in article 4 of the will. Tendler’s challenge is outside of the
three specific issues covered by section 733.212(3). That statute speaks
of the “validity of the will,” not of the “validity of the will or a part thereof.”
Essentially, Tendler and the PRs both sought to have the circuit court
construe a provision of the will. A petition to construe a will is premature
before the will has been admitted to probate. § 733.213, Fla. Stat. (2018)
(“A will may not be construed until it has been admitted to probate.”); In
re Est. of Dahl,
125 So. 2d 332, 335 (Fla. 2d DCA 1960) (explaining that
“[n]o petition or complaint for construction may be maintained in any court
until the will has first been probated”); Cody v. Cody,
127 So. 3d 753, 756
(Fla. 1st DCA 2013) (holding that the order construing a will to determine
beneficiaries was premature as “the probate court has not actually
admitted the will to probate”); First Nat’l Bank of Miami v. Risolia,
200 So.
2d 260, 260 (Fla. 3d DCA 1967) (finding that “[t]he circuit court has
jurisdiction to construe the provisions of a will so long as the will has first
been probated and the circuit court was the court first obtaining
jurisdiction for construction”).
Lowy v. Roberts,
453 So. 2d 886 (Fla. 3d DCA 1984), supports Tendler’s
proposition that an action seeking construction of a will provision is not a
challenge to the validity of a will and is therefore not time-barred by section
733.212(3).
In Lowy, a widow “commenced proceedings which sought to
demonstrate that the first four pages of the probated document . . . were
not contained in the will actually executed by [the testator husband].”
Id.
at 887. The petition was filed more than one year after her husband’s
purported six-page will was admitted to probate.
Id. The Third District
reversed the dismissal of the petition, reasoning that “the petition for the
reconstruction of the will” was not time-barred by section 733.212 because
the widow’s petition “presupposes that the . . . probated-will is indeed the
will of the testator.”
Id. at 889 (emphasis removed). The widow “d[id] not
question the validity, but only the true contents of the executed and
probated will.”
Id. at 890. The court observed that the petition in Lowy
was “more closely akin . . . to the familiar proceeding for the construction
of a will—as opposed to proceedings for revocation.”
Id. at 889–90
(emphasis removed; citation omitted).
6
Tendler’s objection to the effectiveness of the Decedent’s attempted
exercise of the Rison Trust’s power of appointment requires the court to
construe article 4 of the will as well as provisions of the Rison Trust and
the Tendler Trust. This was not a challenge to the “validity of the will”
within the meaning of section 733.212(3), so the circuit court erred in
dismissing Tendler’s response to the PRs’ petition as time-barred.
Finally, this case concerns the obligation of the Rison trustee in light of
the will’s exercise of the limited power of appointment contained in the
Rison Trust. The procedural path of this case supports the notion that
Tendler’s claim should not have been dismissed. The PRs brought the
Trust/will conundrum before the probate judge with notice to Tendler. It
is as if the PRs filed within the probate case a declaratory judgment action
with regard to the Rison Trust assets. As pointed out in oral argument,
the obligations of the Rison trustee might well have been litigated in
Maryland, the situs of the trust, or otherwise outside of probate. Once the
PRs injected the issue into the Florida probate proceeding, with notice to
Tendler, the principle of fundamental fairness favors Tendler’s ability to
have a voice in the court’s resolution of the issues.
We reverse and remand for further proceedings. Nothing in this opinion
should be read as a comment on the merits of the case.
Reversed and remanded for further proceedings.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
7
