Adversarial proceedings in Florida probate are governed by the Florida Rules of Civil Procedure. Pursuant to Florida Probate Rule 5.025(d):
After service of formal notice [declaring the proceeding adversarial], the proceedings, as nearly as practicable must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525 [governing motions for costs and attorneys’ fees].
How Do I Know If My Florida Probate Is An Adversary Proceeding?
Pursuant to Fla. Prob. Rule 5.025, there are three ways that a Florida probate proceeding becomes an adversary proceeding.
Automatic Adversary Proceedings
Some proceedings in Florida probate court are automatically deemed to be adversary proceeding, unless otherwise ordered by the court. These proceedings are proceedings to:
- remove a personal representative
- surcharge a personal representative
- remove a guardian
- surcharge a guardian
- probate a lost or destroyed will or later-discovered will
- determine beneficiaries
- construe a will
- reform a will
- modify a will
- cancel a devise
- partition property for the purposes of distribution
- determine pretermitted status
- determine pretermitted share
- determine amount of elective share and contribution
- revocation of probate of a will
Declared Adversary Proceedings
Other proceedings in Florida probate can be declared adversary by serving a separate declaration of adversary proceeding on interested persons. Declaring a proceeding adversarial in Florida probate requires service by formal notice of the declaration.
Adversary Status By Order
The court may determine any proceeding to be an adversary proceeding at any time.
After a proceeding is deemed adversary, the caption of subsequent pleadings changes in that the probate caption is extended, and must include the name of the first petitioner and the name of the first respondent.
A Florida Probate Adversary Proceeding
When the rules of civil procedure apply, probate contested proceedings become more like a civil suit.
Like a complaint is a civil suit, a petition “shall contain a short and plain statement of the relief sought, the grounds therefor, and the jurisdiction of the court where the jurisdiction has not already been shown.” Fla. Prob. R. 5.020(b); See also LaCalle v. Barquin, 987 So. 2d 1245, 1245 (Fla. 3d DCA 2008). When an interested person in probate moves to dismiss a probate petition after the proceedings are declared adversarial, the Court must confine itself strictly to the allegations within the four corners of the petition. Id. at 1246 (relying on Pizzi v. Cent. Bank & Trust Co., 250 So. 2d 895, 897 (Fla. 1971)).
In LaCalle, the trial court dismissed a petition to probate a lost or destroyed will following respondent’s motion to dismiss based on affidavits attached to the motion to dismiss. On appeal, the Third District reversed in an eloquent fashion, where it stated as follows:
A petition for administration of a will and a petition to establish a lost or destroyed will in probate are different proceedings. See Lowy v. Roberts, 453 So. 2d 886 (Fla. 3d DCA 1984). As to the former, it is apodictic that matters dehors the four corners of a complaint or petition may not be considered on a motion to dismiss. See Fla. Prob. R. 5.025(d)(2) ([T]he proceedings [to probate a lost or destroyed will], as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, . . .); see also Pizzi v. Cent. Bank & Trust Co., 250 So. 2d 895, 897 (Fla. 1971) (holding–on a motion to dismiss–that [t]he court must confine itself strictly to the allegations within the four corners of the complaint’ (quoting Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968))); N.E. at West Palm Beach, Inc. v. Horowitz, 471 So. 2d 570, 570-71 (Fla. 3d DCA 1985) (The purpose of a motion to dismiss is to ascertain whether a plaintiff has alleged a good cause of action and the court must confine itself strictly to the four corners of the complaint.)
Petitions in probate may take different postures, for example, a petition for administration, a petition to establish a lost or destroyed will, or a petition to establish and return probate assets. While each petition may seek a separate recovery and involve different moving parts, the petition itself is what triggers the proceeding towards that recovery.
Like a complaint in a civil action, the petition as an initial pleading in probate may invite a response in the way of a motion to dismiss. When the Court rules on the motion to dismiss in probate, it is limited in the same fashion as in a civil lawsuit, to not exceed the four corners of the operative pleading—the petition.