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Delbrouck v. Eberling

Florida Court of Appeals, Fourth District

August 30, 2017

MARIA EBERLING as Personal Representative of the Estate of LEON G. DELBROUCK, AIME GUY DEBROUCK and CLAUDE DELBROUCK, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marc H. Gold, Judge; L.T. Case Nos. PRC-14-000186 and PRC-14-002186.

          Brian C. Valentine of the Law Office of Mosier Valentine, P.A., Fort Lauderdale, for appellant.

          Scott A. Weiss of Selzer & Weiss, Fort Lauderdale, for Appellee Maria Eberling.

          John G. Jordan of John G. Jordan, P.A., Fort Lauderdale, for Appellee Claude Delbrouck.

          Cynamon, Abby, Associate Judge.

         Georges Delbrouck appeals from an order granting summary judgment in a probate case. Appellant, a beneficiary under the subject will, argues that he is an interested person with standing to contest the will and thus, it was error for the trial court to grant summary judgment where he pleaded undue influence and lack of testamentary capacity. We agree and reverse. We find it unnecessary to address the remaining arguments on appeal.

         Leon G. Delbrouck died January 1, 2014, and was survived by his three sons-appellant, Aime Guy Delbrouck, and Claude Delbrouck. About three weeks after the decedent's death, the probate court entered an order admitting his June 26, 2013 will to probate. The order noted that the decedent's will appointed Maria Eberling-Aime's ex-girlfriend-as the personal representative. Aime was appointed as the substitute personal representative. The will divided the decedent's assets equally among his three sons, who would have been the decedent's heirs at law had there been no will.

         In May 2014, appellant petitioned for revocation of probate. Appellant eventually filed a second amended petition, alleging that the will was procured by undue influence and overreaching on the part of Aime and the personal representative, the decedent lacked capacity, and the personal representative failed to notify appellant of the administration of the estate because the notice was mailed to the wrong address. The petition further alleged that the personal representative gave preference to Aime in the administration of the Estate. Appellant sought, inter alia, revocation of probate and a vacation of the appointment of the personal representative.

         Without responding to appellant's petition, the personal representative served a motion for summary judgment in February 2016, alleging that even if there had been undue influence or if the will had been executed when the decedent lacked testamentary capacity, appellant would not receive any benefits by successfully revoking probate. The personal representative filed affidavits from Aime and Claude, who each attested that they would nominate the same personal representative and reject appellant's attempt to seek an alternate representative.

         Appellant filed two memoranda of law in opposition to the motion for summary judgment, arguing, inter alia, that there was undue influence, the decedent lacked testamentary capacity, and the motion erroneously relied on Newman v. Newman, 766 So.2d 1091 (Fla. 5th DCA 2000). Appellant further alleged that the personal representative allowed Aime access to the estate's real property and assets to the exclusion of the other beneficiaries. Specifically, appellant claimed the personal representative demanded that he vacate real property owned by the estate but did not make the same demand of Aime, who occupied a warehouse property owned by the estate, or of Claude, who occupied a condominium owned by the estate. Moreover, appellant added that the personal representative and Aime removed personal property from the decedent's former residence, and destroyed or disposed of it, without providing an accounting. Appellant submitted various exhibits in opposition to the summary judgment motion, including deposition testimony by Aime, by the personal representative, and by the attorney who drafted the will.

         In June 2016, the probate court conducted a hearing on the motion for summary judgment. The personal representative argued that appellant was in a no-win situation because: (1) appellant did not allege that there was a prior will that would give him more than what he received under the disputed will; (2) even if the will was not probated, appellant would have been entitled to the same one-third share of the estate through intestate succession; and (3) the personal representative would remain unchanged based on the affidavits from appellant's two brothers. Appellant acquiesced that both the will and intestate succession would give him the same one-third distribution of the decedent's estate but argued still for revocation of the will based on its alleged improper creation.

         The probate judge initially suggested deferring ruling on the motion for summary judgment until an evidentiary hearing was held on an outstanding motion to remove the personal representative and on another motion to dismiss that motion to remove the personal representative. However, the parties disputed that course of action, and after more argument and a recess, the probate judge made the following statement on the record:

Okay. I've been going through this six different ways and I brought it up and it appears that there is no question in my mind as to the issue of whether we go forward on the will or we go intestate. The consequences of that decision are meaningless. There is nothing. And given the reliance on Newman, I just want to quote one sentence and I think I read this two or three times, but let me just read it again. I think this is at page three. "An interested person is defined as any ...

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