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Agee v. Brown

Florida Court of Appeal, Fourth District

November 16, 2011

Jon AGEE and Susan Agee, Appellants,
v.
Roger L. BROWN, as Personal Representative of the Estate of Herbert G. Birck and as the Trustee of the Herbert G. Birck Revocable Trust, Appellee.

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[Copyrighted Material Omitted]

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Joseph DeGance, Fort Lauderdale, for appellants.

Peter J. Forman and Sean M. Lebowitz of Gutter Chaves Josepher Rubin Forman Fleisher P.A., Boca Raton, for appellee.

CIKLIN, J.

Jon and Susan Agee appeal the trial court's order dismissing their petition to revoke probate of the last will of Herbert G. Birck based on a lack of standing. The trial court had found that the prior will upon which the Agees based their standing was void as contrary to public policy because Mr. Agee, in violation of the Rules Regulating The Florida Bar, had drafted that earlier will in which he and his wife were left a substantial bequest. The Florida Probate Code, however, does not provide for such an automatic exclusion. Because we conclude that the Agees have standing under a prior will to petition for the revocation of the decedent's last will, we reverse and remand for further proceedings.

The decedent, Herbert G. Birck, died on October 25, 2009. On November 17, 2009, Roger L. Brown filed a petition for administration of the decedent's testate estate. Brown sought to have the decedent's last will and testament, which was executed on February 11, 2009 (the " 2009 will" ), admitted to probate and to have himself appointed as personal representative of the estate in accord with the 2009 will. The trial court granted Brown's petition.

In April 2010, Jon and Susan Agee filed a verified petition to revoke the probate of the 2009 will. The Agees named Brown in both his capacity as personal representative and as trustee of the decedent's living trust as the respondent. In their petition, the Agees alleged a claim of undue influence by one or more of the beneficiaries in the procurement of the decedent's 2009 will and the living trust referenced in that will, and a claim that the testator lacked testamentary capacity at the time those instruments were executed.

As the basis for their standing, the Agees alleged that they were the beneficiaries under a line of testamentary instruments beginning in 1998 and culminating with a will executed in 2007 (the " 2007 will" ). The Agees further alleged that they had been close friends with the decedent for approximately sixteen years.

Brown, as personal representative of the estate, filed a motion to dismiss the Agees' petition. In this motion to dismiss, Brown asserted, among other grounds, that the Agees lacked standing to contest the 2009 will and trust, because the 2007 will, which the Agees claimed gave them standing as a beneficiary, was void as a result of it having been drafted by Mr. Agee who was the decedent's attorney at the time. Brown essentially argued that because it is a violation of the Rules Regulating The Florida Bar for an attorney who is not related to a client to prepare a will on the client's behalf that includes a bequest for the attorney, the bequest to the Agees from the 2007 will was void as contrary to public policy, and therefore, the Agees had no interest in the decedent's estate.

In support of the motion to dismiss, Brown attached several documents including a copy of the 2007 will and an affidavit of Jon Agee, which had been recorded in

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the official records of Broward County on February 19, 2010. In this affidavit, Mr. Agee admitted to having represented the decedent and his wife in various matters, including estate planning. Although the affidavit itself does not directly state that Mr. Agee drafted ...


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