PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Renounce/Divest Bequest – A Prerequisite To Challenging The Validity Of A Will

PRE-DISTRIBUTION: A beneficiary who seeks to revoke probate of a will must renounce his benefits under that will. See, Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994). The renunciation can be in the body of the petition to revoke probate [Carman, supra], and a renunciation alleged in an amended petition will relate back to the date of the original petition. See, In re Estate of Wood (Fla. 1973). The renouncing party bears the burden of proving renunciation, and the renunciation must be clear and unequivocal. See, Gardner v. Richardson (In re Gardner), 283 P.3d 676 (Ariz. App. 2012), citing Daley v. Daley, 308 Mass. 293, 32 N.E.2d 286, 290 (Mass. 1941) and Garfield v. White, 326 Mass. 20, 92 N.E.2d 575, 579 (Mass. 1950).

A renunciation is “qualified” in effect and permits an unsuccessful contestant to take under the will as the testator intended. At the same time, it encourages beneficiaries to come forward with bona fide claims as to the validity of an instrument that could thwart the testator’s true intent. See,Carman, supra; Estate of Harby, 269 So. 2d 433 (Fla. 2nd DCA 1972) (a “qualified” renunciation protects the estate by keeping the property in question in the possession of the estate until its proper disposition is determined; it prevents the attacker of the will from “having his cake and eating it too,” in that if he is successful in invalidating the will he cannot take under the will).

POST-DISTRIBUTION: A beneficiary who seeks to revoke probate of a will must divest the benefits he received under the will. Divesture of title must be by some method and means apparent of record, and it is not sufficient for the beneficiary to say simply that he declines and will not have the title thrust upon him. See,Pournelle v. Baxter, 151 Fla. 32 (Fla. 1942). A beneficiary who receives and retains a bequest under a will is estopped to contest the validity of the will if it appears that prejudice has resulted to third persons whose interests are affected by the instrument by reason of the temporary receipt of the benefits and if the elements of laches are present in the transaction. See,Barnett Nat’l Bank v. Murrey, 49 So. 2d 535 (Fla. 1950). Arguably, once the beneficiary received his bequests, he is no longer an “interested person”. See, §731.201(23), F.S. (The term “interested person” does not include a beneficiary who has received complete distribution).

The purpose of such divestiture is three-fold: (1) to protect the personal representative in the event the will is held invalid; (2) to demonstrate the sincerity of the contestant and prove that the suit is not merely vexatious; and (3) to have the property readily available for disposition under a decree of court. See, Carman, supra.

The presumption of acceptance may be conclusive if the beneficiary fails to return his bequest “promptly”. See, In re Estate of Pellicer, 118 So. 2d 59 (Fla. 1st DCA 1960); Barnett Nat’l Bank v. Murrey, supra (a beneficiary who has received benefits under such an instrument is not thereby estopped to contest the validity of the instrument if he returns the benefits promptly); Pournelle v. Baxter, 151 Fla. 32 (Fla. 1942) (A beneficiary cannot hold to a devise with one hand and shove it away with the other. He must determine, and determine promptly what course he will pursue).

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When a contesting beneficiary is unsuccessful and assets of the estate are depleted because of the unsuccessful contest, the court has the discretion to direct that the resulting costs and attorney fees be charged against the contestant’s devise under the will. See, §733.106(4), F.S.; Carman, supra.