In Hill v. Davis, (Fla. 2011), the Florida Supreme Court may have relaxed the 3 month deadline within which to challenge certain types of probate fraud. The Florida Supreme Court held that the 3 month period to make certain objections after receiving a Notice of Administration might not apply for challenges based on facts not known during the three month window.
Florida Notice of Administration Imposes A 3-Month Deadline For Certain Probate Objections
The Florida Probate Code requires that a personal representative serve a Notice of Administration on certain interested persons in the probate, including surviving spouses and beneficiaries of the estate. See the Florida Probate Deadlines and Timelines applicable to probate cases. The Notice of Administration may also be served on any person for whom the personal representative wishes to start the statute of limitations running. Any person who receives the Notice of Administration has 3 months from receipt to make certain objections, including the validity of the will, the qualifications of the personal representative, or the jurisdiction of the court. The person objecting has 3 months to file a pleading in the probate court making the objection.
Section 733.212(3) of the Florida Probate code provides:
Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.
Facts Discovered After the 3-Month Period May Excuse a Late Filing
What if the reason to challenge the will or the qualifications are not discovered within the 3 month period? Can an interested person file an objection after the 3 month deadline?
The Florida Supreme Court has said yes, in some circumstances. In that case, the personal representative was not eligible to serve as personal representative because he was not a resident of Florida and was not related to the deceased at the time of death of the deceased. An interested person challenged the appointment after the expiration of the 3 month contest period. The fact that the personal representative was not eligible to serve were known to the contestant during the 3 month period.
In rejecting the contestant’s challenge as untimely, the Florida Supreme Court explained that, for facts known to the contestant, the 3 month contest period cannot be expanded. For contests based on facts not known, the 3 month period might not apply.
For challenges based on the qualifications of the personal representative, this case controls – a late contest based on newly discovered facts can proceed outside of the typical probate fraud deadlines. But what about another type of challenge – a will contest based on undue influence – that is not discovered until after the 3 month contest period expires. Does the 3 month limitation period apply? Must the petition for administration or the notice of administration be based on fraud? These answers are not currently known, and will depend on the facts of the individual case.