## Facts

- In 1994, Youssef Harbie executed a Florida will while married to Catia Harbie.
- At the time of execution, Youssef had two children: Carlos Harbie (from a prior marriage), age 20 and living in Venezuela, and Rita Harbie (from his marriage to Catia), age 2.
- The will gave Catia 30% of the estate if she survived Youssef by 30 days; if she did not survive him (or if they were no longer married at Youssef’s death), “all bequests meant for her benefit” would “vest equally in my children” in trust under Article III.
- The will also directed that one-half of the residuary estate be distributed equally among “my children” who survived Youssef by 30 days, to be held in trust, and then stated: “I have only one child at the time of this Will, Rita Harbie.”
- The will further provided that if any “issue” did not survive Youssef, that beneficiary’s share would pass to his or her issue, per stirpes, or if none, “to my then remaining children.”
- Youssef died in 2002. Carlos petitioned to take under the will, asserting that he fell within the class “my children.”
- Jack A. Falk, Jr., as administrator ad litem for the estate, moved for summary judgment, arguing the will’s language limited “my children” to Rita (and any later-born children), not Carlos.
- The estate submitted an affidavit from the attorney who drafted the will stating, among other things, that Youssef never mentioned Carlos, intended the bulk of his estate for Rita, and used “children” to ensure any future children would be included.
- Carlos filed no affidavit opposing the motion. The trial court entered final summary judgment for the estate, ruling Carlos was not a beneficiary. Carlos appealed.

## Issues

1. Whether the will’s repeated references to “my children,” read with the statement “I have only one child at the time of this Will, Rita Harbie,” included Carlos as a beneficiary.
2. Whether the trial court improperly considered the drafting attorney’s affidavit as extrinsic evidence, and, if so, whether that affected the validity of the summary judgment.

## Decision

- The Third District Court of Appeal affirmed the final summary judgment for the estate.
- The court held the will unambiguously limited the class gift to “my children” to Rita (and any later-born children), thereby excluding Carlos.
- Because the will’s text resolved the question of intent, the outcome did not turn on the drafting attorney’s affidavit.

## Legal Principles

- A court’s task in construing a will is to give effect to the testator’s intent as expressed in the will’s language.
- When a will’s terms are clear and unambiguous, construction is a matter of law and can be decided on summary judgment.
- Extrinsic evidence is not used to alter or contradict unambiguous testamentary language; such evidence matters only when the will is ambiguous.
- A testator’s express statement in the will identifying his child or children at the time of execution can define the scope of a class gift to “my children,” even if the testator in fact had another child.

## Conclusion

The Third District affirmed summary judgment because the will’s statement that Youssef had “only one child at the time of this Will, Rita Harbie,” when read with the class-gift provisions to “my children,” showed a clear intent to limit beneficiaries to Rita (and any children born later), so Carlos was not entitled to share in the estate.


Harbie v. Falk, 907 So. 2d 566 (2005)