ROSE KASMER, ET AL., APPELLANTS,
v.
IN RE THE GUARDIANSHIP OF ROMAN LIMNER, APPELLEE
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Rose and Morris Kasmer, as personal representatives of Roman Limner's estate, appealed a probate court order requiring cremation of Limner's remains pursuant to his will. The Florida appellate court affirmed the order, holding that testamentary directions regarding disposition of remains must be honored as an expression of the testator's intent.
The court held that testamentary directions regarding the disposition of remains must be enforced to the fullest extent possible as an expression of the testator's intent. The cremation portion of the will can be performed, and the strewing of ashes can be accomplished through petition to the court or through statutory procedures for unclaimed cremated remains.
[1] Testamentary directions regarding the disposition of remains are controlling and must be complied with to the fullest extent possible.
[2] The primary consideration in construing a will is the intent of the testator.
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Join FLexlaw to unlock all legal intelligence“From the beginning this court has undeviatingly held to the view that in construing wills its guide and polar star is the intent of the testator. The cases of this court affirming this proposition are legion. There is no higher duty nor greater responsibility on the courts than that of seeing to it, in proper cases, that the will of the dead is honored.”
Establishes the foundational principle that testator intent is paramount in will interpretation and that courts have a fundamental duty to honor the deceased's wishes.
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Join FLexlaw to unlock all legal intelligenceRoman Limner died on May 21, 1997. His will, dated May 7, 1990, explicitly requested that his remains be cremated and his ashes strewn as his wife Roc…
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PER CURIAM.
Rose Kasmer and Morris David Kasmer, the personal representatives of the Estate of Roman Limner, appeal from an order of the probate court requiring the cremation of Roman Limner. We affirm.
Roman Limner died May 21, 1997. His will, dated May 7,1990, expressly states: “It is my request and desire that my remains be cremated and that my ashes be strewn in such manner as my wife, ROCHELLE, shall determine.” However, Rochelle Limner predeceased her husband by three months. The probate court ordered cremation pursuant to the will. For reasons of conscience, the personal representatives have asked that the order be reversed.
The probate court correctly concluded that the testamentary language is control ling. Florida courts have long held that testamentary directions are to be complied with to the fullest extent possible. Here, the probate court appropriately noted the Florida Supreme Court’s position:
From the beginning this court has unde-viatingly held to the view that in construing wills its guide and polar star is the intent of the testator. The cases of this court affirming this proposition are legion. There is no higher duty nor greater responsibility on the courts than that of seeing to it, in proper cases, that the will of the dead is honored.
Morgenthaler v. First Atlantic Nat’l Bank of Daytona Beach, 80 So. 2d 446, 452 (Fla.1955); see In re Estate of Reese, 622 So. 2d 157, 159 (Fla. 4th DCA 1993) (reversing the trial court when it “failed to construe the decedent’s will consistent with his intent”); In re Estate of Bancker, 232 So. 2d 431, 432 (Fla. 4th DCA 1970) (noting that “[t]he intention of the testator has always been the primary consideration in construing wills”).
Mr. Limner clearly stated his wishes. The first portion of the will provision, the cremation, can be performed. The second portion, the strewing of the ashes, can be accomplished through two possible means. First, the personal representatives may petition the trial court for directions. Alternatively, section 470.0255(2), Florida Statutes (1995), provides that “the funeral or direct disposal establishment” may dispose of any unclaimed cremated remains after 120 days. We remind the Kasmers that their duty as personal representatives is to administer this estate in accordance with the terms of Mr. Limner’s will.1
The stay of the probate court order is vacated and the order is affirmed.
. If the personal representatives cannot act in compliance with the will because of their religious views, they are free to resign or ask the probate court to appoint suitable individuals who can cany out the decedent’s wishes.
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Cohen v. Guardianship OF Hilliard Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005)…or other lawful disposition. Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla.1950). Where the testator has expressed his exclusive intention through the will, the testator’s wishes should be honored. For instance, in Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Fla. 3d DCA 1997), the testator directed that his body be cremated. The executor of the will refused to follow that direction for reasons of conscience. The court concluded that the testamentary language was controlling, and the executor was requir…
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Spivey v. Teen Challenge OF Fla., Inc., 122 So. 3d 986 (Fla. 1st DCA 2013)…resentative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative; personal representatives serve the estate’s interest, not vice-versa. See Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Fla. 3d DCA 1997) (personal representative, who objected on religious grounds to cremation, has a duty to administer estate according to decedent’s wishes). This obligation to fulfill the de-ceaseds’ wishes extends to the judiciary. See Morgenthale…
Authorities Cited
- Morgenthaler v. First Atl. Nat'l Bank OF Daytona Beach, 80 So. 2d 446 (Fla. 1955)
- In re Est. of Adrian Bancker, 232 So. 2d 431 (Fla. 4th DCA 1970)
- In re Est. OF Harry B. Reese, 622 So. 2d 157 (Fla. 4th DCA 1993)