## Facts

- Mary Ericson’s will created a testamentary trust paying income to her friend Emma Brown for life.
- The will directed that, upon Brown’s death, the trust remainder be distributed outright to the “International Wildlife Society.”
- The co-trustees later concluded that no entity existed under that name despite a diligent search.
- The drafting attorney averred the will was prepared quickly and that “International Wildlife Society” was a composite phrase, not an actual organization.
- Brown averred Ericson intended the remainder to go to a local Broward County animal charity that would avoid euthanasia except as a last resort, and that Ericson often referenced the Humane Society of Broward County.
- The co-trustees petitioned the probate court to determine the proper remainder beneficiary, proposing the Humane Society of Broward County or a similar no-kill animal charity.
- SPCA Wildlife Care Center appeared as an interested charity and argued for application of cy pres to direct the gift to SPCA (or a comparable animal-welfare purpose).
- Without conducting an evidentiary hearing, the trial court sua sponte ruled the residuary clause failed and ordered the remainder to pass by intestacy.

## Issues

1. Whether the probate court erred by sua sponte adjudicating the failure of the residuary clause and ordering intestate distribution when that theory was not raised by the pleadings.
2. Whether the probate court was required to conduct an evidentiary hearing before rejecting cy pres and declaring the charitable remainder gift failed.

## Decision

- The Fourth District Court of Appeal reversed the final order.
- The court held the trial court erred by deciding an unpleaded issue without notice and an opportunity to be heard.
- The court further held the trial court should have held an evidentiary hearing allowing interested parties to present evidence on charitable intent and the applicability of cy pres.
- The case was remanded for further proceedings consistent with those requirements, including an evidentiary hearing to determine the proper disposition of the remainder.

## Legal Principles

- A court generally may not adjudicate and dispose of a case on a theory not framed by the pleadings without notice and an opportunity for parties to be heard.
- When a testamentary charitable gift names a nonexistent or unascertainable beneficiary, the court must examine whether the testator had a general charitable intent.
- If general charitable intent is shown, cy pres may be applied to carry out the charitable purpose as nearly as possible rather than permitting intestacy.
- Where cy pres and intent depend on disputed or undeveloped facts, an evidentiary hearing is required before determining whether the charitable provision fails.

## Conclusion

The appellate court reversed because the probate court invalidated the charitable remainder provision and ordered intestacy on its own initiative, without notice or an evidentiary hearing; on remand, the court must take evidence and consider cy pres to implement the testator’s animal-welfare intent if a general charitable purpose is established.


SPCA Wildlife Care Ctr. v. Abraham, 75 So. 3d 1271 (Fla. Dist. Ct. App. 2011)