Notice to caveators prior to will's admission to probate.

• Author: Lewis, Mark R., Sr.
• Position: Florida

A prudent caveator under the statute should assert in the caveat that he or she is an "interested person"--someone who reasonably expects to be affected by the probate or lack of probate of the will.

Must a caveator be given prior notice of the petition for administration? F.S. [sections] 733.203(1) provides that if a person who is an "heir"(1) or is "a devisee under a will other than that being offered for probate" files a caveat, then the provisions of F.S. [sections] 733.2123 must be followed prior to the admission of the will to probate by requiring that a copy of the offered will be attached to the notice. F.S. [sections] 733.2123 requires that notice be given to "interested persons" prior to the admission of the will to probate. This article will attempt to answer whether that heir or devisee who filed the caveat must be given prior notice of the petition for administration. The knee-jerk answer to that question would seem to be in the affirmative, but is that necessarily true?

F.S. [sections] 733.203(1) causes the provisions of F.S. [sections] 733.2123 to become mandatory, rather than permissive, but F.S. [sections] 733.2123 merely provides for notice to "interested persons." Fla. Prob. R. 5.260(f) provides: "After the filing of a caveat by an interested person other than a creditor, the court shall not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator's designated agent." (Emphasis added.)

Nowhere in F.S. [sections] 733.203(1), Fla. Prob. R. 5.260, or F.S. [sections] 733.2123 does it specifically state that an heir or a devisee under a will other than that being offered for probate, who filed a caveat, must receive prior notice of the petition for administration. Rather, all those provisions speak in terms of notice to an interested person.

The early case of In Re Switzer's Estate: Street v. Crosthwait, 134 Fla. 158 (1938), clarified in 136 Fla. 327 (1939), seems to indicate that the caveator(2) is automatically entitled to notice. In that case the beneficiary of a will filed a caveat and the will was then admitted to probate without prior notice to the caveator. Id. at 160. The court held that the caveator was entitled to prior notice and remanded the case for further proceedings. However, that case dealt with then existing statute [sections] 5467, C.G.L. (1927), which provided in pertinent part:

If he be apprehensive that the will may be admitted to probate without his knowledge, he may file in the office of the county judge a caveat, and after the filing of the same the county judge shall not admit the will to probate until he shall have given at least ten days' notice to the caveator, or some other person to be named in the caveat, if such caveat or some other person be found in the county. (Emphasis added.)

Id. at 163.

As can be seen from the then existing statute, notice was required to be given to the "caveator" as opposed to the current statutory and probate rule requirements of giving notice to "interested persons."

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