Why Filing a Caveat in a Florida Probate Court is Important
February 4, 2021
While you may not want to commence a probate proceeding yourself, you still may have concerns about someone else getting the jump on you by secretly probating a will that is invalid. In those instances, you would want to file a “caveat,” as authorized by Fla. Stat. §731.110 and Fla. Prob. R. 5.260.
Assuming you are not a creditor, who is limited to filing after death, you are able to file a caveat either before or after the death of the person whose estate is to be administered. Then, notice of the proceedings is required to be given to you (with a very short time for a response) prior to the appointment of a personal representative for the estate.
There is a second and equally important use for caveats, to assure that you are heard by the Court with regard to your challenge to the will prior to it being admitted to probate. Simply filing an answer and affirmative defenses (like in a civil proceeding) is not enough according to the Second District Court of Appeal in Crezcenzo v. Simpson, 239 So. 2d 213 (Fla. 2d DCA 2018). You need to do both: file an answer and also file a separate caveat). The Second District Court of Appeal explained:
[W]hen an interested person other than a creditor files a caveat and challenges the decedent’s will, “the probate court [is] obliged to make a determination on [the] challenge to the will prior to appointing a personal representative and admitting the will to probate.” In re Estate of Hartman, 836 So.2d 1038, 1039 (Fla. 2d DCA 2002); see also Rocca v. Boyansky, 80 So.3d 377, 381 (Fla. 3d DCA 2012). The filing of a caveat has “the effect of precluding the admission of the will to probate” until the party filing it has the opportunity to litigate his challenge. Barry v. Walker, 103 Fla. 533, 137 So. 711, 714 (1931); see also Rocca, 80 So.3d at 381 (holding that “will contests and the rights of caveators must be determined” prior to the letters of administration being issued).
In Crezcenzo, the contestant did not file a document entitled “Caveat”, but did file an “Answer and Affirmative Defenses.” The probate judge ignored the answer as filed, and entered an order admitting the contested will to probate without holding a trial.
Conceding that caveats are mandatory to guarantee a trial in advance of admitting a contested will, on appeal the contestant argued that his answer was the “functional equivalent” of a caveat. The Second District sided with the contestant, saying “we are quite comfortable under the circumstances of this case concluding that the pleading he filed was the functional equivalent of the form of caveat the rule contemplates.” The Court further explained that a probate court should consider an interested person’s will contest, even if pleaded in improper form:
As in Guth’s Estate, here we think any variance in form between Mr. Crescenzo’s answer and a true caveat is immaterial. There is no question that his answer identified his interest in the estate; there is no question that his answer put the court and the parties on notice of a will contest; there is no question that his answer precisely identified the decedent and will to which his challenge pertained; and there is no question that he was looking for a decision on his will contest before the will was admitted to probate. This is a case in which the substance of what Mr. Crescenzo was doing is obvious and any defect in form is inconsequential. See, e.g., Fla. Prob. R. 5.020(a) (“No defect of form impairs substantial rights ….”); In re Estate of Koshuba, 993 So. 2d 983, 986 (Fla. 2d DCA 2007) (“We agree … that Mr. Zilewicz’s written statements, made within his Petition for Administration and the Amended Petition for a Guardian ad Litem, were substantially sufficient to place interested persons on notice of his claim. The documents filed in the probate proceeding … are defective as to form, but they sufficiently state the character and extent of his claim.”); Harbour House Props., Inc. v. Estate of Stone, 443 So. 2d 136, 137 (Fla. 3d DCA 1983) (“The creditor’s response to the motion to strike its claim became the functional equivalent of a motion to excuse the untimely filing of a claim against the estate.”).
Because the “Answer and Affirmative Defenses” was deemed the “functional equivalent” of a caveat on the facts of this case, the Second District concluded that the probate court erred by admitting the will to probate without first addressing the will contest.
The moral of the story is this. There would be no need to pursue an appeal merely to preserve the right to trial on a contested will prior to its admission to probate. In Crezcenzo, the contestant convinced the appellate court that his answer was the “functional equivalent” of a caveat. However, the prudent approach is to file a caveat, to safeguard the ability to challenge the validity of a will prior to its admission to probate.