## Facts

- Nero Pender died intestate; his second wife predeceased him.
- Roberta Williams, Pender’s biological daughter, claimed the estate as heir.
- Thelma J. Pender Washington and Mary Elizabeth Pender Rea, Pender’s grandnieces, lived with Pender and his wife from 1953 until each married.
- The grandnieces filed a petition in probate court seeking a determination that they were equitably adopted and thus entitled to inherit as children.
- After a bench trial, the probate court ruled the grandnieces proved equitable adoption “by a bare preponderance of the evidence,” and treated them as heirs.

## Issues

1. What standard of proof applies to establishing equitable adoption in Florida in an intestate heirship determination: preponderance of the evidence or clear and convincing evidence?

## Decision

- The First District Court of Appeal reversed and remanded.
- The court held that equitable adoption must be proven by clear and convincing evidence.
- Because the probate court applied a preponderance standard, it used an incorrect legal standard requiring reversal and reconsideration under the proper burden of proof.

## Legal Principles

- Florida recognizes equitable adoption as an equitable remedy that can permit inheritance rights comparable to those arising from statutory adoption when its elements are established.
- The commonly stated elements include: an agreement to adopt; relinquishment of custody by the natural parent(s); the child’s performance by living with the alleged adoptive parent(s); partial performance by the alleged adoptive parent(s) in treating the child as their own; and the alleged adoptive parent’s intestacy.
- A finding of equitable adoption materially alters intestate succession and property rights; therefore, the claimant must prove equitable adoption by clear and convincing evidence.
- Application of an incorrect standard of proof in adjudicating equitable adoption in probate is reversible error and requires remand for application of the correct standard.

## Conclusion

The appellate court required a heightened evidentiary burden for equitable adoption in Florida probate proceedings, reversing the heirship determination because the trial court relied on a mere preponderance of the evidence rather than clear and convincing proof.


Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999)