DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOHN P. KELLAR,
Appellant,
v.
ESTATE OF JOHN W. KELLAR,
Appellee.
No. 4D17-3019
[October 24, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark A. Speiser, Judge; L.T. Case No. PRC 140003001.
Henny L. Shomar and Douglas H. Reynolds of Tripp Scott, P.A., Fort
Lauderdale, for appellant.
Scott A. Weiss, Fort Lauderdale, for appellee.
GERBER, C.J.
The decedent’s son appeals from the circuit court’s order granting the
decedent’s wife’s petition for administration in part and denying the son’s
counterpetition for administration, and from the circuit court’s order
denying the son’s motion for rehearing. We affirm both orders. The wife
presented competent substantial evidence to raise the rebuttable
presumption that the son exerted undue influence over the decedent to
procure the decedent’s revocation of his will favoring the wife, and that
upon the burden of proof shifting to the son, the son failed to establish, by
a preponderance of the evidence, the nonexistence of undue influence. See
RBC Ministries v. Tompkins,
974 So. 2d 569, 572 (Fla. 2d DCA 2008)
(“[O]nce a will contestant establishes the existence of the basis for the
rebuttable presumption of undue influence, the burden of proof shifts to
the proponent of the will to establish by a preponderance of the evidence
the nonexistence of undue influence.”).
In reaching our conclusion, we acknowledge that the circuit court, in
rendering its final order, made three erroneous factual findings regarding:
whether the son drove the decedent to meet with the son’s lawyer; the
timing of when the guardian removed the decedent from the home in
relation to a domestic disturbance between the wife and the decedent; and
whether the son was a beneficiary of the decedent’s earlier wills. However,
viewing these few erroneous factual findings within the perspective of the
circuit court’s lengthy factual findings, we conclude that the erroneous
factual findings were inconsequential to the circuit court’s ultimate finding
that the son failed to establish, by a preponderance of the evidence, the
nonexistence of undue influence. Thus, the erroneous factual findings
were harmless.
We also acknowledge that the circuit court, as an alternative basis for
its orders, erroneously concluded the decedent’s prenuptial agreement
precluded the decedent from revoking his will favoring the wife. See
Lindeburg v. Lindeburg,
162 So. 2d 1, 2-3 (Fla. 3d DCA 1964) (“In a
contract to make a will, the promisor has the right to change his will . . .
the right being enforced against the promisor is the contract right, and not
the will, in the case of the breached contract to make a will . . . .”) (footnotes
omitted). However, that error is harmless given our affirmance of the
circuit court’s finding that the son failed to establish, by a preponderance
of the evidence, the nonexistence of undue influence.
We conclude without further discussion that the son’s other arguments
on appeal, not addressed in this opinion, lack merit.
In sum, as our sister court stated in Estate of Brock,
692 So. 2d 907
(Fla. 1st DCA 1996):
It is axiomatic that the trial court’s resolution of conflicting
evidence will not be disturbed by a reviewing court in the
absence of a clear showing of error, or that the conclusions
reached are erroneous. In reviewing the trial court’s findings,
they must be given the benefit of all reasonable inferences that
may be drawn from the evidence. Further, we are prohibited
from reevaluating the evidence and substituting our judgment
for that of the finder of the facts.
Id. at 913 (internal citations omitted).
Affirmed.
LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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