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Does it Matter if a Florida Probate Proceeding is Adversarial?

By:  Jeffrey Skatoff, Esq.

Yes, a seemingly obscure probate rule about whether a dispute is adversarial or not can have a large consequence, as made clear in the case of Dora v. Morrison, 5D22-1369 (5th DCA 2024).

What Does it Mean in Florida Probate Proceedings for a Dispute to be Adversarial?

Some probate proceedings can become contested  – think of a few obvious proceedings such as a will contest or an attempt to remove a personal representative for breach of duty.  If a probate proceeding becomes contested, the rules of civil procedure should apply, and they do.  If a probate proceeding is not adversarial, only certain of the rules of civil procedure apply.

What Rules of Civil Procedures Apply in Florida Probate to a Non-Adversarial Proceeding?

Florida Rule of Probate 5.080 sets forth some of the rules of civil procedure that apply in all probate proceedings, basically allowing all forms of discovery to apply:

(a) Adoption of Civil Rules. The following Florida Rules of Civil Procedure shall apply in all probate and guardianship proceedings:

(1) Rule 1.280, general provisions governing discovery.
(2) Rule 1.290, depositions before action or pending appeal.
(3) Rule 1.300, persons before whom depositions may be taken.
(4) Rule 1.310, depositions upon oral examination.
(5) Rule 1.320, depositions upon written questions.
(6) Rule 1.330, use of depositions in court proceedings.
(7) Rule 1.340, interrogatories to parties.
(8) Rule 1.350, production of documents and things and entry upon land for inspection and other purposes.
(9) Rule 1.351, production of documents and things without deposition.
(10) Rule 1.360, examination of persons.
(11) Rule 1.370, requests for admission.
(12) Rule 1.380, failure to make discovery; sanctions.
(13) Rule 1.390, depositions of expert witnesses.
(14) Rule 1.410, subpoena.

There is one catch, however, to doing discovery in a probate proceeding – the court has far more power to limit the scope of discovery than in regular civil litigation:

(b) Limitations and Costs. In order to conserve the assets of the estate, the court has broad discretion to limit the scope and the place and manner of the discovery and to assess the costs, including attorneys’ fees, of the discovery against the party making it or against 1 or more of the beneficiaries of the estate or against the ward in such proportions as the court determines, considering, among other factors, the benefit derived therefrom.

And Rule 5.080 makes it abundantly clear that these discovery procedures can be used in non-adversarial proceedings:

(c) Application. It is not necessary to have an adversary proceeding under rule 5.025 to utilize the rules adopted in subdivision (a) above. Any interested person may utilize the rules adopted in subdivision (a).

What Rules of Civil Procedure Apply in Florida Probate to an Adversarial Proceeding?

Basically, all of them.  Rule 5.025(d)(2) states as follows:

(2) After service of formal notice, 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.

Rule 1.525 is known as the “30-day” rule for filing a motion for attorney fees or costs.


Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

Because probate disputes are often rolling in nature and can have overlapping matters, it is not always easy to discern when an action is over.  Also, many probate disputes are resolved short of a “judgment,” with orders being entered rather than final judgments.  The elimination of a formal deadline triggered by a judgment allows the probate court to handle attorney fees requests in a practical manner.

What is Formal Notice in a Florida Probate Proceeding?

An important fact of a matter being considered adversarial is how notice to the other interested persons is delivered.  Because an adversarial proceeding can be a “case within a case,” the other interested persons must be put on sufficient notice that something important is taking place.  Rule 5.025(d)(1) requires that “formal notice” be given to interested persons.

(1) Petitioner must serve formal notice, except as provided in proceedings pursuant to section 825.1035, Florida Statutes.

What is formal notice?  Formal notice is a process whereby the underlying motion or petition is served with a signature of delivery being required, along with a notice that covers the motion or petition stating that the receives has 20 days to respond, exactly how a summons covering a complaint in a regular civil proceeding takes place.  It can also be served via hand delivery.

(a) Formal Notice.

(1) Procedure for Formal Notice. When formal notice is given, a copy of the pleading or motion must be served on interested persons, together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice, exclusive of the day of service, and to file the original of the written defenses with the clerk of the court either before service or immediately thereafter, and notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice.

(2) Effect of Service of Formal Notice. After service of formal notice, informal notice of any hearing on the pleading or motion must be served on interested persons, provided that if no written defense is served within 20 days after service of formal notice on an interested person, the pleading or motion may be considered ex parte as to that person, unless the court orders otherwise.

(3) Manner of Service of Formal Notice. Formal notice must be served in the following manner: (A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt; (B) as provided in the Florida Rules of Civil Procedure for service of process; (C) as otherwise provided by Florida law for service of process; or (D) by first-class mail when only in rem or quasi in rem relief is sought against a person if: (i) registered or certified mail service to the addressee requiring a signed receipt is unavailable and if delivery by commercial delivery service requiring a signed receipt is also unavailable; (ii) delivery pursuant to subdivision (a)(3)(A) is attempted and is refused by the addressee; or (iii) delivery pursuant to subdivision (a)(3)(A) is attempted and is unclaimed after notice to the addressee by the delivering entity.

Which Matters in a Florida Probate Proceeding are Adversarial?

Some matters are automatically adversarial, and other matters need to be declared adversarial.

Rule 5.025(a) sets forth the list of matters that are automatically adversarial.

(a) Specific Adversary Proceedings. The following are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, obtain an injunction or temporary injunction pursuant to section 825.1035, Florida Statutes, 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, and for revocation of probate of a will.

If a proceeding is not adversarial, a litigant or the probate court can declare the matter adversarial:

(b) Declared Adversary Proceedings. Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.

(1) If served by the petitioner, the declaration must be served with the petition to which it relates.

(2) If served by the respondent, the declaration and a written response to the petition must be served at the earlier of: (A) within 20 days after service of the petition, or (B) prior to the hearing date on the petition.

(3) When the declaration is served by a respondent, the petitioner must promptly serve formal notice on all other interested persons.

(c) Adversary Status by Order. The court may determine any proceeding to be an adversary proceeding at any time.

Can a Probate Proceeding Be Treated as Adversarial by Estoppel?

Yes, as the Dora case made clear.  Two competing petitions to determine the homestead status of real property were filed.  A homestead petition is not automatically adversarial, and none of the parties declared the petitions as adversarial.  One litigant (Appellee) filed a motion to strike another litigant’s petition (Appellant).  The Appellant responded that motions to strike are only allowed under Rules 1.150 and 1.140(f) of the Florida Rules of Civil Procedure, not under the Probate Rules, unless the matter had been declared adversarial, which had not been done.  Therefore, Appellant contended, the motion to strike should not have been allowed.  Not so fast:

In their motion for rehearing and on appeal, Appellants argue that motions to strike were not permissible below because the proceedings were non-adversary probate proceedings. Typically, Appellants would be correct, and that argument would carry the day. Neither of the proceedings in which the motions were filed had been declared adversary and there is no similar probate rule under which Appellees could have been traveling.

However, this position is inconsistent with Appellants’ successful motion to consolidate pursuant to rule 1.270, a rule which also does not apply in non-adversary proceedings. See Fla. Prob. R. 5.080(a).

Appellants urged the trial court to consolidate probate cases with circuit civil cases pursuant to rule 1.270. Appellants pursued consolidation for both discovery and trial, detailing the scathing nature of the litigation between and among the several parties involved here, over the opposition of Appellees, who relied on rule 1.270 to support their own position against consolidation for trial purposes. Once Appellants were granted their consolidation request in toto and only after having their petitions stricken did Appellants contest the applicability of the rules of civil procedure on rehearing, which was then noticeably filed pursuant to probate rule 5.020(d).

As such, Appellants would gain an unfair advantage derived from a clearly conflicting position asserted for the first time at rehearing if not judicially estopped. See Anfriany, 232 So.3d at 428 (explaining that prejudice occurs when “the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped” (quoting Grau, 899 So.2d at 400)). This conduct is the “playing fast and loose with the courts” judicial estoppel is designed to prevent. Up until the motion for rehearing, the parties acted as though this was an adversary probate proceeding, so we review the propriety of the motions to strike pursuant to the rules of civil procedure as though these were adversary probate proceedings.

So the rule announced by the court is pretty simple:  if the parties act like the matter is adversarial, one of the parties cannot then later complain that the matter is being treated as adversarial without a proper declaration of such, under the principle of judicial estoppel.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Jeffrey Skatoff Esq

Jeffrey H. Skatoff, Esq.

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