       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    MEREDITH FIEL and LISA FIEL,
                            Appellants,

                                    v.

DOUGLAS F. HOFFMAN, as Personal Representative of the Estate of Ben
 H. Novack, Jr., NARCY NOVACK, MARCHELO GAFFNEY, PATRICK
   GAFFNEY, MAY AZALEH ABAD, and HARVEY E. MORSE, P.A.,
                           Appellees.

                             No. 4D14-1048

                             [July 29, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Charles M. Greene, Judge; L.T. Case Nos. PR-C-09-
0003699 and PR-C-13-00004176.

  Elliot B. Kula and W. Aaron Daniel of Kula & Associates, P.A., Miami,
and Peter A. Dyson of Metnick, Levy & Dyson, Delray Beach, for
appellants.

  Gary L. Rudolf of Rudolf & Hoffman, P.A., Fort Lauderdale, for appellee
Douglas F. Hoffman.

  William G. Crawford, Jr. of McDonald & Crawford, P.A., Fort
Lauderdale, for appellees Marchelo Gaffney, Patrick Gaffney and May
Abad.

WARNER, J.

    In this appeal, we are asked to extend the Slayer Statute to bar the
children and grandchildren of the murderer from inheriting under the
decedent’s will. The language of the Slayer Statute does not allow us to
make that extension. We therefore affirm the trial court’s order dismissing
the appellants’ complaint based upon the Slayer Statute, but we reverse
the dismissal of the count seeking to void the will based upon undue
influence.

  This case arises from the probate of Ben Novack’s estate. Ben was
murdered in 2009. The case became notorious when Ben’s wife, Narcy,
was arrested and then convicted of Ben’s murder. She also was
responsible for the death of Ben’s mother. She did all of this to assure
that she and her family would obtain Ben’s considerable fortune upon his
death. Narcy had a daughter by another marriage, and the daughter had
two sons. Both the daughter and her sons were named in Ben’s will as
beneficiaries if Ben’s mother and Narcy did not survive Ben. Specifically,
the will which was probated provided that if Ben’s mother did not survive,
Ben’s estate would go to his wife Narcy. If neither his mother nor his wife
survived him, then Narcy’s daughter would receive $150,000, and the
residue of the estate would be held in trust for Narcy’s two grandsons.

   After Narcy sought probate of the will, the court appointed appellee
Douglas Hoffman as personal representative. Ultimately, the court
determined that based upon section 732.802, Florida Statutes (2012), the
Slayer Statute, Narcy was not entitled to participate in the estate, and the
statute required the court to treat Narcy as having predeceased Ben.
Therefore, her daughter and grandsons were the sole beneficiaries of the
estate.

    Ben’s cousins Meredith and Lisa Fiel (“appellants”) then filed a
complaint and an amended complaint to invalidate the will currently
under probate, as well as a prior will executed in October 2002, which
devised the residue of Ben’s estate to Narcy, or to Ben’s mother if Narcy
predeceased him. Appellants sought to enforce a will executed in June
2002, which devised the residue of Ben’s estate to his mother if she
survived him, and to appellants if his mother predeceased him. The
complaint brought several claims, two of which are at issue in this appeal:
(1) undue influence in the execution of the two wills devising the estate to
Narcy and her descendants; and (2) under the Slayer Statute, Ben’s
stepdaughter and step-grandsons were barred from inheriting under Ben’s
will.

   In the amended complaint, appellants alleged the following facts. Narcy
had used physical violence against Ben to make him execute the two wills
naming her and her family as beneficiaries. She also threatened to make
public embarrassing personal matters of Ben’s. Ben had sought a
restraining order against Narcy, in which he alleged that she had made
death threats to him. She used physical violence and death threats to
benefit her, her daughter, and her grandchildren. Thus, appellants
argued, the two wills were the product of undue influence. As to the Slayer
Statute claim, appellants alleged that the court should prohibit Narcy’s
daughter and grandchildren from sharing in Ben’s estate, because Narcy
could benefit from the estate indirectly, as her daughter and grandchildren


                                     2
could deposit money in her prison inmate account, thus thwarting the
intent of the Slayer Statute.

   The personal representative moved to dismiss the complaint and the
amended complaint, and the court ultimately granted that relief. The
court determined that, while the complaint alleged undue influence on the
part of Narcy, it made no allegations that the daughter and grandsons
participated in any way. The court found, “Where it is shown that one
beneficiary procured a will by undue influence, the devises to the
remaining beneficiaries who did not participate in the procurement remain
valid.” As to the Slayer Statute, the court determined that the Slayer
Statute did not prohibit the children of the murderer from inheriting,
ruling:

    Section 732.802 is clear and unambiguous and does not extend
    the prohibition of receipt of property or other benefits to anyone
    other than the killer of the decedent. It is not for the Court to
    legislate new laws or amendments to existing laws that are clear
    and unambiguous, that is exclusively a legislative process.

After appellants voluntarily dismissed the remaining counts of the
complaint, the court entered a final order of dismissal, prompting this
appeal.

   Appellants argue that Florida’s Slayer Statute should be interpreted to
bar Narcy’s daughter and grandsons from inheriting under Ben’s will. The
“slayer rule” first arose under the common law, from the concept “that no
person should be permitted to benefit from his own wrong.” Carter v.
Carter, 88 So. 2d 153, 157 (Fla. 1956). In 1933, Florida enacted section
731.31, Florida Statutes, which provided:

         Any person convicted of the murder of a decedent shall not
      be entitled to inherit from the decedent or to take any portion
      of his estate as a legatee or devisee. The portion of the
      decedent’s estate to which such murderer would otherwise be
      entitled shall pass to the persons entitled thereto as though
      such murderer had died during the lifetime of the decedent.

Carter, 88 So. 2d at 156.

    Courts interpreted this statute as not barring inheritance in cases of,
for example, a conviction for manslaughter. Nable v. Godfrey’s Estate, 403
So. 2d 1038, 1040-41 (Fla. 5th DCA 1981). Disagreeing with this outcome,


                                    3
the Legislature later expanded the statute by enacting section 732.802,
Florida Statutes, which now provides:

          (1) A surviving person who unlawfully and intentionally
      kills or participates in procuring the death of the decedent is
      not entitled to any benefits under the will or under the Florida
      Probate Code, and the estate of the decedent passes as if the
      killer had predeceased the decedent. Property appointed by
      the will of the decedent to or for the benefit of the killer passes
      as if the killer had predeceased the decedent.

§ 732.802(1), Fla. Stat. (2013).

   The Second District considered whether this provision barred
inheritance by the slayer’s heirs in In re Estate of Benson, 548 So. 2d 775
(Fla. 2d DCA 1989). In Benson, one of three siblings murdered his mother
and one of his siblings. Id. at 776. The mother’s will bequeathed her
property to the three siblings; the murdered sibling died intestate, and the
intestacy statute provided that the estate would pass to the slayer and the
third sibling. Id. In rejecting the claim that the slayer’s children should
be barred from any inheritance, the Second District ruled:

         Appellant [the surviving, innocent sibling] . . . argues that
      the public policy of Florida requires that Florida’s Slayer
      Statute should be extended to prevent [the slayer’s] minor
      children from sharing in either [the mother’s] or [the murdered
      sibling’s] estates. . . .

         We have no difficulty in rejecting appellant’s contention
      that there exists a public policy in Florida that would extend
      Florida’s Slayer Statute so as to disinherit the natural and/or
      statutory heirs of a killer who except for his murderous act
      would have been a beneficiary of his victims’ estates. We find
      the statutory language clear and unambiguous. If there is to
      be declared in Florida such a public policy as appellant urges,
      it must be accomplished by a legislative amendment to the
      Slayer Statute and not by a pronouncement of this court.

                                       ...

        It is difficult to advance a credible argument as to any
      ambiguity in the statute or how the legislature could have
      more clearly spoken. It is the “surviving person who . . . kills”
      who is prohibited from benefiting from the act of killing

                                      4
      (emphasis added). The statute clearly states without any
      exceptions that the property of the decedent “passes as if the
      killer had predeceased the decedent.”

                                         ...

         The trial judge therefore reached a correct result in
      determining that the minor children of [the slayer] inherit
      their father’s share of the estates of [the deceased mother and
      sibling].

Id. at 777-78; see also In re Estate of Fairweather, 444 So. 2d 464, 465
(Fla. 2d DCA 1983) (rejecting appellants’ argument that a conditional
bequest in a will failed because “the ‘statutory’ death of the decedent’s
second wife [pursuant to the Slayer Statute] does not fulfill the condition
precedent” in the decedent’s will, reasoning: “the statute itself is clear”).

   The First and Third Districts have relied on Benson in construing the
other subsections of the Slayer Statute dealing with life insurance benefits
and joint tenancies. See Chatman v. Currie, 606 So. 2d 454, 456 (Fla. 1st
DCA 1992) (“We hold as a matter of law that section 732.802 does not
apply to an innocent contingent beneficiary’s entitlement to life insurance
benefits resulting from the killing of the primary beneficiary by the insured
who then commits suicide.”); Lopez v. Rodriguez, 574 So. 2d 249, 250 (Fla.
3d DCA 1991) (“We decline to hold that the legislature intended the statute
to deprive an innocent beneficiary of the trust proceeds.”).

   We agree with our sister courts, as well as the trial court, that the
statute is clear and unambiguous and disinherits only the slayer, or
anyone who participates in the killing of the decedent, from any rights to
the victim’s estate. Appellants contend that Benson and its progeny all
involved innocent family members related by blood, whereas here the
daughter and grandchildren were related to the murderer and not to the
decedent. Benson, however, did not turn on this factor. Rather, the
Benson court relied on the plain language of the statute, which by its terms
excludes only those who actively participate in procuring the death of the
decedent.

   Appellant also relies on several cases from other states which
concluded that their Slayer Statutes precluded stepchildren from
inheriting. See Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 292-94
(R.I. 2012); Heinzman v. Mason, 694 N.E.2d 1164, 1167-68 (Ind. Ct. App.
1998); In re Estate of Mueller, 655 N.E.2d 1040 (Ill. App. Ct. 1995). We
find them all distinguishable. Each dealt with Slayer Statutes whose

                                     5
language is different from that of Florida and could be construed to bar
the children of the slayer from inheriting.

   For instance, the Rhode Island Act provides that “[n]either the slayer
nor any person claiming through him or her shall in any way acquire any
property or receive any benefit as the result of the death of the decedent,
but the property shall pass as provided in this chapter.” Swain, 57 A.3d
at 291. In Swain, the court held that the Rhode Island statute precluded
stepchildren of the deceased from inheriting from her, when their father
was charged with her murder, and the children stated that they would use
their inheritance to pay for their father’s criminal defense. Id. at 293.

   In Indiana, the statute imposed a constructive trust on any property a
slayer might receive from the victim’s estate, to be used for the benefit of
persons legally entitled to the property, as though the slayer had
predeceased the victim. Heinzman, 694 N.E.2d at 1166-67. In Heinzman,
a murder/suicide, both parties died intestate; thus, the court did not deal
with who may be “legally entitled” to the property under a will. Id. at 1166.

    The Illinois statute in Mueller provided that a slayer should not receive
“any property, benefit, or other interest by reason of the death, whether as
heir, legatee, beneficiary . . . or in any other capacity. . . .” Mueller, 655
N.E.2d at 1043 (emphasis added). The court construed this language as
prohibiting the slayer/wife’s children from their share of her husband’s
estate, because the wife could receive a benefit in her capacity as guardian
of her minor child. Id. at 1046. Those cases also present a much stronger
case that the slayer would directly benefit from an inheritance by the
slayer’s children. In this case, it is sheer speculation that Narcy would
obtain money from her daughter and grandchildren, as it appears from the
record that relations between them are significantly strained.

   The statute is clear.      To interpret the statute to preclude the
stepchildren from recovering would require us to add words to the statute,
something we cannot do. If the Legislature deems as a public policy matter
that anyone inheriting through the slayer should be barred from receiving
any share of a victim’s estate, it can amend the statute to accomplish that
result.

   In their second issue on appeal, appellants argue that, although they
have not alleged that the stepdaughter and step-grandsons participated in
unduly influencing Ben’s will, their complaint stated a cause of action for
revocation of the wills based on undue influence, because they alleged that
the entire will was tainted by Narcy’s actions, and the bequests in favor of


                                      6
the stepdaughter and step-grandsons cannot be severed. We agree that
the complaint stated a cause of action.

   Section 732.5165, Florida Statutes (2013) provides:

      A will is void if the execution is procured by fraud, duress,
      mistake, or undue influence. Any part of the will is void if so
      procured, but the remainder of the will not so procured shall
      be valid if it is not invalid for other reasons. . . .

In applying this statute to the present case, the trial court relied on In re
Kiggins’ Estate, 67 So. 2d 915 (Fla. 1953). There, our supreme court dealt
with a materially identical version of section 732.5165, Florida Statutes.
A decedent executed a will leaving the bulk of her property to a Mrs.
Peterson and Myrtle Kirch, with Mrs. Peterson’s husband as executor. The
decedent’s husband challenged the will.         The circuit court found
competent evidence that Myrtle Kirch had exercised undue influence but
that no evidence supported any undue influence by the Petersons. “[T]here
[was] no evidence whatever in the record to show that [the Petersons] at
any time were guilty of any misconduct toward the deceased.” Id. at 918.
The supreme court therefore affirmed the lower court’s ruling that the will
was valid as to the innocent beneficiaries. No facts appear in the opinion
as to the type of undue influence alleged.

    Appellants argue that Kiggins is distinguishable, because they claim
that the entire will was the result of undue influence. They rely on the
following language from In re Van Horne’s Estate, 305 So. 2d 46 (Fla. 3d
DCA 1974):

          The general rule as stated above is subject to the limitation
      that it is not applicable when it will defeat the manifest intent
      of the testator, interfere with the general scheme of
      distribution, or work an injustice to other heirs. The doctrine
      is not applicable where it is impossible to determine to what
      extent the specific legacies have been tainted by the undue
      influence; in such a situation the whole will must either be
      refused probate or admitted thereto. Moreover, the rule which
      permits the probate of part of a will notwithstanding other
      parts are declared invalid as affected by undue influence does
      not mean that a legatee may sustain his bequest on the
      ground that he did not participate in bringing undue influence
      to bear on the testator, where it appears that the entire
      instrument was the result of undue influence.


                                     7
Id. at 49 (quoting 57 Am. Jur. Wills s. 366) (emphasis added). In Van
Horne, the trial court struck a bequest to the deceased’s guardian on the
basis of undue influence, because the trial court found he had improperly
participated in the preparation of the will. Id. at 48. However, the court
allowed a bequest to the deceased’s nephew to stand, and another
beneficiary appealed this holding. Id. The Third District affirmed the
decision, finding:

      [T]here is nothing in this record to show a connection between
      [the guardian] and [the nephew]. The record establishes that
      [the nephew] is a nephew and a natural recipient of the
      testatrix’s bounty. The trial judge has found that [the
      guardian] over-stepped the bounds of propriety by attaching
      his own name as beneficiary of the estate. We know of no
      reason that this finding should destroy the legal effect of the
      codicil as to the remaining beneficiary, and we believe that the
      decision here reached is in accord with In re Kiggins’ Estate
      ....

Id. at 49. Thus, Van Horne did not apply the exception to the rule that
provisions unduly influenced may be severed from the remainder of the
will.

   The Fifth District did apply the exception from Van Horne in Wehrheim
v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA
2005). There, the decedent executed a will revoking her prior wills and
leaving her estate to the assisted living facility where she died. Id. at 1004-
05. The decedent’s children argued that the bequest to the facility was
invalid, as a result of undue influence, but that the revocation clause was
severable and survived, meaning they should inherit under the intestacy
statute. Id. at 1008. Citing the above-quoted language from Van Horne,
the Fifth District reversed the trial court’s order granting summary
judgment against the decedent’s children, holding:

      [I]n order for the [the children] to prevail based on this
      particular argument [that the revocation clause was severable
      and valid], they will have to establish that the revocation
      clause was not invalidated by undue influence. . . Because
      the claim of undue influence raises factual issues, the trial
      court erred in entering summary judgment in favor of Golden
      Pond.
                                     ...



                                      8
      Whether the alleged undue influence, if proven, is pervasive
      enough to permeate the entire will, including the revocation
      clause, and whether the decedent intended the revocation
      clause to be independent of, and unconditional on, the validity
      of the other provisions of the 2002 will are factual issues that
      must be determined by the trier of fact.

Id. at 1009-10.

    We think the Van Horne exception applies to the allegations of undue
influence in appellants’ complaint. Appellants alleged that Narcy used
“undue influence through duress, threats, physical attacks, home
invasions and extortions” to “cause[] Ben Novack to sign two wills which
completely altered Ben Novack’s intended estate plan.” They alleged that
the contested wills “were entirely tainted due to the degree of undue
influence caused by Narcy Novack”; “in totality [were] the product of undue
influence”; and were “void because of undue influence of Narcy Novack.”
Appellants also alleged “The provisions for [the stepdaughter and step-
grandsons] have been tainted by the undue influence.” These allegations
are sufficient to survive a motion to dismiss because they allege that the
undue influence tainted the entire will, including the bequests to the
stepdaughter and step-grandsons.

    This case is not unlike Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d
263 (Fla. 3d DCA 1988). There, the trial court set aside two wills on the
grounds that they were the product of undue influence by Robert Grayson.
Id. at 265. Grayson and his sister were named beneficiaries under these
wills. Id. On appeal, the sister argued that the bequest to her should not
be invalidated based on the actions of her brother. Id. at 267. The Third
District disagreed and affirmed the trial court’s decision to entirely
invalidate both wills, distinguishing Kiggins:

      Even if the trial court had not totally invalidated these
      instruments, this is not a case in which there was no
      relationship between the party exercising the undue influence
      and the other beneficiary of the influenced instrument. In Re
      Kiggins’ Estate, 67 So. 2d 915 (Fla. 1953); In Re Van Horne’s
      Estate, 305 So. 2d 46 (Fla. 3d DCA 1974), cert. denied, 320
      So.2d 388 (Fla.1975). The evidence indicates that Grayson’s
      actions were undertaken not only to benefit himself, but also to
      benefit [his sister].




                                     9
Id. at 267 (emphasis added). Similarly, the complaint in this case alleges
that the actions of Narcy were taken not only to benefit herself but also
her family. As such, the complaint states a cause of action.

   We thus affirm the court’s dismissal of the complaint based upon the
Slayer Statute but reverse the dismissal of the count for revocation of the
wills based upon undue influence. We remand for further proceedings.

LEVINE and CONNER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    10
