IN RE THE ESTATE OF JOSEPHINE A. SHORT, DECEASED. CHARLES PETER HEISIG, APPELLANT,
v.
CHARLES CARL HEISIG, APPELLEE
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The court held that summary judgment was improper because genuine issues of material fact existed regarding the revocation of the will.
The proponent of a lost will appealed a summary judgment and an order directing payment of estate assets. The trial judge applied a presumption of rev…
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FARMER, Judge.
The proponent of a lost will appeals a summary judgment and a final order directing payment of claims, expenses and distribution of estate assets. We reverse both orders.
The trial judge found as a matter of law that the proponent had failed to present sufficient evidence to overcome a presumption of revocation that arises when it is established that the testatrix was in possession of the will before her death and the will cannot later be located, citing In re Estate of Baird, 343 So. 2d 41 (Fla. 4th DCA1977). We stress that the trial court’s determination was made after a hearing on motions for summary judgment and not after a trial.
We do not understand how the trial judge could have reached the conclusion he did without weighing the available evidence against the presumption. Summary judgment hearings are ordinarily not for weighing evidence. The proponent has demonstrated that genuine issues of material fact do exist. Summary judgment is therefore improper. Moore v. Morris, 475 So. 2d 666 (Fla.1985). We express no opinion as to whether the evidence produced by the proponent in the record for the summary judg ment hearing would be sufficient after a trial to overcome the presumption. *
REVERSED.
HERSEY, J., and DOWNEY, JAMES C., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008)…. Determining whether such a presumption has been rebutted requires a “weighing [of] the available evidence against the presumption,” which cannot appropriately be undertaken in summary judgment proceedings. Heisig v. Heisig (In re Estate of Short), 620 So. 2d 1106, 1106 (Fla. 4th DCA 1993). B. Undue Influence A will—or a portion thereof—procured by undue influence is void. § 732.5165, Fla. Stat. (2005). “Undue influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency…
Authorities Cited
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Frazier v. State, 343 So. 2d 41 (Fla. 1st DCA 1976)