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Gregory S. Hansen and Stephen P. Heuston of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for appellant.
No brief filed for appellees.
Appellant, SPCA Wildlife Care Center, timely appeals a final order determining that a residuary clause in a will was invalid. It complains that the trial court erred in sua sponte determining that the residuary clause of the will failed and that the residue of the testamentary trust would pass by intestacy instead of to a charitable organization for the benefit of animals. Because the court ruled on a matter not raised by the parties and failed to conduct an evidentiary hearing to permit the parties to present evidence on the issue, we agree that the court erred. We thus reverse.
The decedent, Mary Ericson, died in 1991. The decedent's will contains a Testamentary Trust, providing for Emma Brown as the life income beneficiary. Thereafter, in Article Six, Paragraph C, the will provided that " [u]pon the death of Emma Brown, this share of the trust estate shall be distributed outright and free of trust to the International Wildlife Society."
In 2007, the Co-Trustees of the trust, George Abraham and Albert Cheval, filed a Joint Petition to Determine Beneficiaries, asserting that after conducting a diligent search, they could not identify any entity or organization known as the " International Wildlife Society." The Co-Trustees stated their belief that the proper entity to take the assets of the trust upon the death of Emma Brown would be " the Humane Society of Broward County, or a similar organization with a no-kill policy." In support of the petition, the Co-Trustees filed the affidavits of J. Peter Friedrich, Jr., and Emma Brown.
J. Peter Friedrich, Jr., the attorney who prepared the decedent's will, attested that the will was a " death bed" type of will that was prepared quickly. He later discovered there was no such entity known as the International Wildlife Society. Instead, the term " International Wildlife Society" was a combination of the names of two animal welfare organizations,  but was not itself any specific entity or organization. The decedent passed away prior to making
any change in her will denominating a true entity or organization to receive the trust estate upon the death of Emma Brown.
Emma Brown, a close friend of the decedent and the lifetime income beneficiary of the trust, attested that " it was the intent of the decedent, Mary Ericson, to have the trust assets distributed to a local Broward County, Florida benevolent animal organization which would attempt to aid and care for animals and not consider destruction of animals except as a last resort." Brown further attested that the decedent " often spoke of the Humane Society [of] Broward County."
Several organizations were notified of the petition and were permitted to file responses as to whether they should be considered to receive the assets of the testamentary trust under the residuary clause set forth in the will. The appellant, SPCA Wildlife Care Center, filed a response, asserting that the assets of the testamentary trust should be distributed to it, based upon the cy pres doctrine. Other interested parties filed responses as well.
In November 2009, the trial court held a hearing on the Co-Trustees' Joint Petition to Determine Beneficiaries. The trial court entered an order on the ...