## Facts

- Dorothy Wehrheim lived at Golden Pond Assisted Living Facility.
- Golden Pond’s administrator contacted Rebecca Fierle, a geriatric care manager, to assist Dorothy with personal affairs.
- Fierle obtained a power of attorney from Dorothy and arranged for preparation of a new will.
- On July 23, 2002, Dorothy executed a will at Golden Pond naming Golden Pond as primary beneficiary and naming Fierle as personal representative.
- Dorothy had executed prior wills in 1998, 1999, and 2000; none made the children primary beneficiaries, and the 2002 charitable-type disposition differed from earlier plans.
- After Dorothy’s death, her children filed petitions seeking administration and to deny admission of the 2002 will to probate, alleging undue influence and lack of testamentary capacity.
- Golden Pond sought formal administration under the 2002 will and moved for summary judgment.

## Issues

1. Whether the decedent’s children lacked standing to contest the 2002 will and seek removal of the personal representative where prior wills did not name them as beneficiaries.
2. Whether dependent relative revocation could apply such that revocation of a prior will might be disregarded if the 2002 will were invalid.
3. Whether the will’s revocation clause could remain effective, or instead be voided, if the dispositive provisions were invalidated for undue influence.

## Decision

- The Fifth District reversed the summary judgment admitting the 2002 will to probate and remanded.
- Standing in an adversarial probate contest is a threshold requirement, not a waivable affirmative defense.
- The record presented triable questions whether the children had a sufficient potential interest through intestacy and/or revival of a prior will under dependent relative revocation.
- The applicability of dependent relative revocation, turning on testator intent and similarity of testamentary schemes, could not be resolved on summary judgment.
- Genuine issues of material fact existed as to whether undue influence affected the revocation clause and whether revocation was intended to be conditional on the validity of the 2002 dispositive scheme.
- Allegations of lack of testamentary capacity and undue influence presented factual disputes inappropriate for summary judgment.

## Legal Principles

- In adversarial probate proceedings, standing is jurisdictional in nature and must be satisfied; it is not an affirmative defense subject to waiver.
- A will contestant may have standing if the contestant would benefit under intestacy or could benefit if an earlier will is revived.
- Dependent relative revocation may disregard a revocation if the revocation was conditioned on the effectiveness of a new disposition; application depends on testator intent and is often fact-intensive.
- When undue influence is alleged, whether a revocation clause falls with, or survives, the invalidation of other provisions may require fact findings, including whether revocation was conditional.
- Summary judgment is generally improper where material facts remain disputed on undue influence, testamentary capacity, dependent relative revocation, or the scope and effect of revocation.

## Conclusion

The appellate court required further proceedings because the children’s standing and the estate’s disposition depended on unresolved fact questions concerning undue influence, testamentary capacity, dependent relative revocation, and whether the 2002 will’s revocation clause was effective or conditional.


Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. Dist. Ct. App. 2005)