Treading on Sacred Ground: Denying the Appointment of a Testator’s Nominated Personal Representative

Subject Area

Civil Procedure; Estates and Trusts Law; Family Law; Property and Real Estate Law


Muriel’s mother had just died. She and her sister, Orit, had been fighting for years during their parents’ guardianship. Now Orit was bringing Muriel to court over who would act as personal representative of their mother’s estate. Their mother had previously executed a valid will nominating their father as personal representative, but he was undisputedly unable to serve. Their mother had chosen Muriel over Orit as the successor personal representative. As named personal representative, Muriel was statutorily preferred over Orit, however, the trial court denied Muriel’s appointment based on the sisters’ dispute. Florida’s Fourth District Court of Appeal reversed and remanded, instructing the trial court to consider the totality of the circumstances. The court reiterated the general rule from Pontrello v. Estate of Kepler that a trial court may deny the appointment of a testator’s nominated personal representative only in exceptional circumstances, and a dispute, standing alone, does not give rise to such discretion. At this point, the Schleider court would have satisfactorily disposed of the sisters’ case. However, the court proceeded, redefining the standard to afford courts broader discretion to deny appointment of a testator’s nominated personal representative.Schleider held that if a dispute exists that would result in unnecessary litigation and impede the administration of the estate, courts may consider (1) factors used in previous intestate succession cases, particularly from In re Estate of Snyder, and (2) any cause for the removal of a personal representative. This holding sharply conflicted with Pontrello, which, by distinguishing an intestate appointment from a testate appointment and the appointment statutes from the removal statute, specifically prohibited courts from considering these factors when denying the appointment of a testator’s nominated personal representative. Schleider’s holding generates drastically inconsistent outcomes for litigants depending on the jurisdiction in which the will is probated. For example, if the court found that the sisterly dispute would result in unnecessary litigation and impede the administration of the estate, a court following Schleider’s holding would be more likely to deny Muriel’s appointment. By contrast, a court following Pontrello would be more likely to uphold her appointment. This conflict has gradually evolved into a split within the Florida district courts of appeal. As recently as 2007, Schleider has been cited and followed in the Fourth and Fifth District Courts of Appeal and recognized in the U.S. District Court for the Middle District of Florida. As recently as 2008, the First and Second District Courts of Appeal have cited and followed Pontrello. Schleider’s additional factors afford courts undue discretion when denying appointment of a testator’s nominated personal representative. By adopting these additional factors, Schleider disregarded two important aspects of Pontrello’s holding: (1) the greater weight afforded to a testator’s nominated personal representative; and (2) the distinction between the appointment and removal statutes. This Comment discusses these two issues and argues that Schleider incorrectly swept them aside. Schleider’s holding weakens property succession laws’ longstanding deference to testamentary freedom and substitutes judicial control instead. Experts agree that denying the appointment of a testator’s nominated personal representative is not a trivial matter. Courts should afford the utmost deference to a testator’s nomination.

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