       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      GEORGES M. DELBROUCK,
                            Appellant,

                                    v.

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

                             No. 4D16-2341

                            [August 30, 2017 ]

   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

                                     2
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
      person that may reasonably be expected to be affected by the
      outcome of the particular proceeding involved.”

      I don’t believe that Georges Delbrouck is affected in any way
      on the outcome of this issue. I don’t think he has standing to
      make an argument on this and I’m going to agree with the
      Petitioner on this matter.

      Having said that, I want -- there is an outstanding Motion to
      Dismiss regarding the motion to remove the personal
      representative. I want that set quickly. I want, and depending
      on my ruling I want if there is going to be an evidentiary
      hearing on that, I want that set quickly. But as to today’s
      hearing, I will agree with Mr. -- the Petitioners -- well, whoever
      I said I agree with, the Respondent.

   The probate court ultimately granted the motion for summary
judgment. The written order stated that the court had heard the

                                      3
arguments of counsel and had reviewed the record summary judgment
evidence, but the order did not provide the court’s reasoning for granting
summary judgment in favor of the personal representative. This appeal
ensued.

   Appellant now argues on appeal that he is a substantial beneficiary
under the will and a putative heir under intestacy law, making him an
“interested person” in every sense of the term, and thus the probate court
erred in granting summary judgment.           Appellant also argues that
summary judgment was further precluded since there were disputed
issues of material fact regarding appellant’s claims for undue influence
and lack of testamentary capacity.

   The personal representative contends that summary judgment was
appropriate as a matter of law. She maintains that while appellant is an
interested person by being a named beneficiary, in order to establish his
standing to seek revocation of probate, appellant would have had to
establish also that he would benefit from a successful revocation
proceeding. The personal representative further argues that the motion
for summary judgment did not address undue influence or lack of
testamentary capacity, and even if the allegations were true, which she
disputes, appellant still would not be able to establish that he had a benefit
to gain by revoking the will.

   We review an order granting summary judgment de novo. Dennis v.
Kline, 120 So. 3d 11, 20 (Fla. 4th DCA 2013). Summary judgment is
proper only where there is no genuine issue of material fact and where the
moving party is entitled to judgment as a matter of law. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). We also
review de novo the interpretation of statutes. Duncombe v. Adderly, 991
So. 2d 1013, 1015 (Fla. 4th DCA 2008).

    Here, the trial court committed two errors in granting the motion for
summary judgment. First, it was error to grant the motion for summary
judgment on the basis that appellant did not have standing. Second,
because appellant had standing, it was error to grant summary judgment
where the personal representative failed to refute the factual allegations of
undue influence and lack of testamentary capacity that were raised in the
second amended petition to revoke probate. We now address each error
in turn.

   “[S]tanding to bring or participate in a particular legal proceeding often
depends on the nature of the interest asserted.” Hayes v. Guardianship of


                                      4
Thompson, 952 So. 2d 498, 505 (Fla. 2006). 1 An interested person may
seek revocation of probate. See § 733.109(1), Fla. Stat. (2014). An
interested person is “any person who may reasonably be expected to be
affected by the outcome of the particular proceeding involved.”           §
731.201(23), Fla. Stat. (2014). Even the personal representative of an
estate is deemed an “interested person” in proceedings affecting the estate
or the rights of a beneficiary of the estate. Id.

    Here, appellant falls within the definition of an interested person within
the meaning of section 733.109(1), since he was both a beneficiary under
the will and an heir at law, and he would have been affected by the
outcome of the revocation petition insofar as a successful revocation would
have subjected the personal representative—whom appellant alleged was
improperly administering the estate and giving preferential treatment to
the other beneficiaries—to removal under section 733.504(10), Florida
Statutes (2014). There is no requirement in the plain language of the
statute that appellant prove his share of the estate would have been
different if his revocation attempt succeeded. Consequently, the trial
court’s and the personal representative’s reliance on Newman was
misplaced insofar as they interpreted the holding in Newman to find that
appellant lacked standing to challenge the will. Newman is easily
distinguishable from the instant case.

    The petitioner in Newman was found not to be an interested person and
therefore lacked standing because he had been disinherited in the
challenged 1962 will as well as in a previous 1954 will. 766 So. 2d at
1093-94. Moreover, the Newman court noted that seeking justice by
punishing alleged will forgers was an insufficient basis to confer standing
to challenge a will. Id. at 1094. Thus, the only logical reason for the
petitioner’s challenge, the court found, was to delay the distribution of the
decedent’s estate such that his stepmother’s interest in the estate, which
was the entire estate, would lapse. Id. As such, the court held that the
petitioner should not benefit by his intentional efforts to delay distribution
of the estate. Id. The Fifth District later interpreted its Newman decision
to mean that “a petitioner may not be an interested person in revocation
and removal proceedings if previous and presumptively valid wills have
been discovered that, similar to the current will, do not include petitioner
as a beneficiary of the estate.” Wehrheim v. Golden Pond Assisted Living

1 For example, in Hayes, our supreme court held that “a person, including an

heir of a ward, has standing to participate in a guardianship proceeding if the
applicable provisions of either the Florida Guardianship Law or the Florida
Probate Rules entitle the person to notice of the proceeding or authorize the
person to file an objection in the proceeding.” Id. at 500.

                                      5
Facility, 905 So. 2d 1002, 1006 (Fla. 5th DCA 2005) (citations omitted).
Here, appellant was a beneficiary under the challenged will, was not
disinherited in a prior will, and did not seek to delay distribution until the
sole beneficiary’s interest lapsed in order to obtain an interest, rendering
Newman wholly inapplicable.

   While the affidavits of appellant’s brothers suggest that the current
personal representative would receive preference to be reappointed
pursuant to section 733.301(1)(b), Florida Statutes (2014), even if
appellant were to successfully revoke the will, this preference would not
result in mandatory or automatic appointment. See In re Estate of Snyder,
333 So. 2d 519, 520 (Fla. 2d DCA 1976) (noting that an individual may be
considered unsuitable to administer an estate if there is an adverse
interest, hostility to those immediately interested in the estate, or an
interest adverse to the estate). The Snyder court further held:

      Where the record supports the conclusion that a person
      occupying the position of statutory preference does not have
      the qualities and characteristics necessary to properly
      perform the duties of an administrator, it would be an
      anomaly to hold that a probate court, which has historically
      applied equitable principles in making its judgments, does not
      have the discretion to refuse to appoint him simply because
      he did not fall within the enumerated list of statutory
      disqualifications.

Id. at 521. Here, if the will were revoked as a result of the undue influence
of Aime and Maria, appellant would have a reasonable argument that the
probate court should refuse to reappoint Maria as personal representative.
Thus, because appellant would potentially gain the appointment of a
different personal representative if the will were revoked, appellant has a
legally cognizable interest that would be affected by the outcome of the
revocation petition.

   Next, the effect of the personal representative’s failure to file an answer
to the second amended petition to revoke probate, or to otherwise refute
the claims raised in the petition, was to leave unrebutted the facts alleged
by appellant in the complaint. See Fla. R. Civ. P. 1.110(e). Specifically,
these claims were: (1) that the decedent lacked capacity at the time he
executed the will because the medication he was taking affected his
cognitive abilities; and (2) that the decedent was unduly influenced by
Aime and Maria, who “removed the decedent from his home” and “spirited
him away” to a lawyer’s office to execute a new will.


                                      6
    Moreover, appellant’s exhibits in opposition to the motion for summary
judgment supported the allegations of undue influence and lack of
testamentary capacity raised in the petition. The exhibits included
deposition testimony from Aime stating that he had driven the decedent
and the personal representative to the attorney’s office, that he suggested
the appointment of Maria as the personal representative, and that he had
a power of attorney allowing him to control the decedent’s checkbook. The
affidavits also included medical notes stating that the decedent had some
memory deficits that were filled in by his son, who was knowledgeable
about the decedent’s health condition, as well as additional deposition
testimony from Aime claiming not to be sure or not to remember whether
the decedent had been diagnosed with dementia or Alzheimer’s.

   While it was permissible for the personal representative to file a motion
for summary judgment without filing an answer to the second amended
petition for revocation, it was error for the court to grant summary
judgment where appellant had standing to seek revocation and the
unchallenged petition stated causes of action for undue influence and lack
of capacity. The petition, and subsequent deposition evidence, raised
factual issues which were not refuted by the personal representative at the
summary judgment hearing.

    The Second District considered this issue in Hemker v. Abdul, 716 So.
2d 817 (Fla. 2d DCA 1998). Hemker, like the case at bar, involved a
petition to revoke probate. Id. at 818. Also just like in the case at bar, the
petition in Hemker to revoke probate asserted lack of testamentary
capacity and undue influence. Id. The trial court entered summary
judgment against the proponent of the petition to revoke probate. Id. On
appeal, the Second District reversed, finding that both the pleadings and
the deposition of the proponent of the will raised unresolved factual issues
as to the presence of undue influence on the decedent and the decedent’s
testamentary capacity. Id. The Second District also noted that reversal of
the summary judgment was necessary because the proponent of the will
failed to present any evidence to counter the allegations of undue influence
and lack of testamentary capacity. Id. In the case at bar, just as in
Hemker, the personal representative failed to present any evidence at the
summary judgment hearing to refute the allegations of undue influence
and lack of testamentary capacity raised by the second amended petition.

   In conclusion, we hold that it was error for the probate court to grant
summary judgment. As an interested person, appellant had standing to
contest the will. Moreover, the personal representative’s failure to respond
to the allegations in the second amended petition left unrebutted
appellant’s claims of undue influence and lack of testamentary capacity.

                                      7
Therefore, the court erred in granting the personal representative’s motion
at this point in the proceedings. Thus, we reverse the summary judgment
and remand to the probate court for further proceedings consistent with
this opinion.

   Reversed and Remanded.

DAMOORGIAN, J., concurs.
KUNTZ, J., concurs in result only with opinion.

KUNTZ, J., concurring in result.

   I agree that reversal is required because section 733.109(1), Florida
Statutes (2015), provides that any interested person may commence a
proceeding to revoke the probate of a will. While the appellant will receive
the same one-third share of the estate regardless of whether the estate is
probated or distributed intestate, the legislature has not required an
interested person to demonstrate that their share will increase before the
person may seek revocation of probate. However, while I join in the
reversal, I would limit our decision to the grounds the court actually
decided. We do not need to address other arguments regarding the court’s
summary judgment.

   I also recognize the court was seeking to proceed in a manner that
would not prejudice any party and would expedite the distribution of the
estate. In the briefs and at oral argument, counsel struggled to explain
how the actual beneficiaries would benefit by revoking the probate. In fact,
it was agreed that each beneficiary will receive a one-third share of the
estate regardless of the manner in which it is distributed. The appellant’s
actual complaints are with the personal representative, as evidenced by a
separate civil action he filed seeking to remove her. I agree with the
probate judge that the issues the appellant raises in his section 733.109
petition would be better and more efficiently addressed by resolving that
separate action. Unfortunately, the appellant has not sought to expedite
that litigation.

   The court granted summary judgment based upon its conclusion that
the appellant lacked standing. I agree that pursuant to section 733.109,
the appellant had standing to seek to revoke the probate. Therefore, I
would reverse the entry of summary judgment on that basis, but would go
no further.




                                     8
                      *        *        *

Not final until disposition of timely filed motion for rehearing.




                               9
