Schilling v. Herrera
Mignonne Schilling died in Miami in August 2004. Her brother — the sole beneficiary of her 1996 will — was not told until December 6, four days after her caregiver had petitioned to close the probate. By then there was nothing to contest. So he sued in tort instead, and Florida's Third District let him.
Every will contest in Florida runs on a clock. The clock starts when the personal representative serves the notice of administration, and it stops three months later. If you do not know the person died, the clock runs anyway.
That is the entire problem Schilling v. Herrera was built to solve, and it is the reason a 2007 opinion out of Florida's Third District still gets cited in probate litigation every year.
Mignonne Helen Schilling had renal disease. According to the opinion, her hospitalizations began in 1999. She met Maria Herrera in 2001, when Herrera was working at the rehabilitation facility from which Schilling was discharged. Herrera later provided care on an occasional, as-needed basis. By 2003, as the decedent's condition worsened, she moved out of her own apartment and into a bedroom Herrera had converted from a garage, paying rent for the room and for the care.
In December 1996, Schilling had executed a will naming her brother Edward A. Schilling as personal representative and sole beneficiary. In September 2003, living in the converted garage and — as the amended complaint alleged — completely dependent on her caregiver, she executed a new will and a power of attorney naming Maria Herrera as personal representative and sole beneficiary.
Four months of silence, and then a phone call
Mignonne Schilling died on August 6, 2004. The probate moved briskly.
A petition for administration was filed August 24, 2004. The creditor period ran. On December 2, 2004, a petition for discharge of the probate was filed. On December 6, 2004 — four days later — Edward Schilling was told, for the first time, that his sister had died four months earlier. A final order of discharge was entered later that month.
The amended complaint characterized the silence as part of a calculated scheme to keep him from contesting the 2003 will. Whether that is what happened was never decided; the case was dismissed before anyone found out. What is not in dispute is the sequence of dates, and the sequence of dates is fatal.
Fla. Stat. §733.109 permits any interested person — including a beneficiary under a prior will — to petition to revoke probate. It also says that petition must be brought before final discharge of the personal representative. Learning of the death on December 6 and of the estate in the same conversation left a window measured in days, against a proceeding already at its end.
Two reasons a trial court threw it out
Edward Schilling did not file in probate. He filed a civil action pleading a single count: intentional interference with an expectancy of inheritance.
The trial court dismissed the amended complaint with prejudice on two grounds. First, that it failed to state a cause of action, because there was no special relationship between the caregiver and the brother that would create a duty to tell him anything. Second, that the claim was barred because he had not exhausted his remedies in the probate court.
The second ground was the serious one, and it rested on a real Florida rule. In DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), the Florida Supreme Court held that a plaintiff who had an adequate remedy in probate — and a fair opportunity to pursue it — cannot decline to use it and then sue in tort afterward. Probate is where will fights belong. You do not get a second forum because you dislike the first one's answer.
Two frauds, not one
On April 4, 2007, the Third District reversed on both grounds and remanded for further proceedings.
On the elements, the court set out the tort in four parts: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. The complaint alleged an expectancy under the 1996 will, undue influence in the procurement of the 2003 will, a causal line between the two, and a lost inheritance. That states a claim. The absence of any duty running from the caregiver to the brother did not matter, because the tortious conduct alleged was directed at the decedent, not at him.
That point is the doctrinal heart of the case, and the court said it plainly: the beneficiary sues primarily to protect the testator's interest, not the disappointed beneficiary's expectations. The cause of action exists to protect a dead person's right to dispose of her property freely and without improper interference. The beneficiary is simply the only one left who can bring it.
On exhaustion, the court read the complaint as alleging two separate frauds. The first was fraud in the procurement of the will — undue influence over the decedent — and that is exactly the kind of fraud a probate court exists to remedy. The second was extrinsic fraud: conduct that prevented Schilling from contesting the will at all. Relying on Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984), the court held that where the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court, DeWitt does not bar the collateral action.
The distinction is clean. If you could have contested and did not, you are out. If the reason you did not contest is the defendant's own alleged conduct, you are in.
Timeline
- Dec 1996Mignonne Schilling executes a will naming her brother Edward as personal representative and sole beneficiary.
- 1999–2001Renal disease and repeated hospitalizations. She meets Maria Herrera in 2001 at a rehabilitation facility.
- 2003As her condition worsens she leaves her apartment and moves into a bedroom Herrera converted from a garage, paying rent for the room and the care.
- Sept 2003A new will and power of attorney are executed naming Herrera as personal representative and sole beneficiary.
- Aug 6, 2004Mignonne Schilling dies in Miami.
- Aug 24, 2004Petition for administration filed. The creditor period begins to run.
- Dec 2, 2004Petition for discharge of the probate is filed.
- Dec 6, 2004Edward Schilling is told of his sister's death — four months after it happened, four days after the discharge petition. A final order of discharge follows later that month.
- Apr 4, 2007The Third District reverses the dismissal and remands, holding the amended complaint states a claim and that extrinsic fraud takes the case outside DeWitt v. Duce.
What actually went wrong
- Nobody had to tell him. The personal representative serves the notice of administration on beneficiaries and interested persons. A brother written out of the current will is not obviously on that list, and the statute does not deputize anyone to go find him.
- The contest clock does not wait for you. §733.212(3) gives an interested person three months from service to object to the validity of a will. §733.109 requires a revocation petition before final discharge. Neither deadline pauses because you were unaware of the death.
- A caregiver in the will, drafted during dependency. A new will executed while the testator lives in the beneficiary's home and depends on her for care is the fact pattern Florida's undue-influence presumption was built for. It is also the fact pattern nobody sees until the estate is closed.
- The old will was never told to anyone. Edward Schilling was named personal representative in 1996 and appears not to have held the document or been positioned to act on it. A will nobody can find on the day of death is a will that cannot compete.
- Speed closes doors. An estate opened in August and petitioned for discharge in December is not unusual. It is also enough to run out every clock a distant relative might have used.
Would it have gone that way in Florida?
This IS the Florida rule — and it is a narrow one. Probate first. Tort only when probate was made impossible.
Florida recognizes intentional interference with an expectancy of inheritance as a tort, with four elements: an expectancy, intentional interference with it through tortious conduct, causation, and damages. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007), is the case Florida lawyers cite for both the elements and the limit.
The limit matters more than the elements. Under DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), if you had an adequate remedy in the probate court and a fair opportunity to pursue it, that is your remedy. You cannot skip the will contest and sue for money afterward. Schilling carves out the case where the defendant's own alleged conduct is the reason no probate remedy was available — the concealment of the death until after discharge. That is extrinsic fraud, and it reopens the courthouse door.
The clocks are the reason the exception was needed. §733.212(3) requires an interested person to file any objection to the validity of the will within three months after service of the notice of administration, and in no event later than final discharge or one year after service. §733.109 requires a petition to revoke probate to be filed before final discharge of the personal representative. Both run whether or not you know the person is dead.
On the merits of the underlying will, Florida has its own machinery. §732.5165 makes a will void if it was procured by fraud, duress, mistake, or undue influence. §733.107(2) provides that the presumption of undue influence shifts the burden of proof to the person who benefited, and In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), supplies the active-procurement factors courts still work through. A caregiver who is a substantial beneficiary and who participated in procuring the will is squarely inside that framework — if anyone gets to raise it in time.
The honest caveat: Schilling did not decide that Maria Herrera did anything. It decided that the complaint could be heard. On remand the allegations still had to be proved, and a defendant who serves proper notice, or whose delay is not shown to be deliberate, is not in this exception at all. Courts read it narrowly on purpose.
The practical instruction is for the family, not the litigator. If someone you would inherit from has moved in with a paid caregiver, or has a new person handling the money, set a calendar reminder to check the county clerk's probate docket twice a year. Florida probate filings are public and searchable by name in every county. Ten minutes, twice a year, is the whole defense — because once the final order of discharge is entered, your options collapse from a will contest into a lawsuit you have to prove from scratch.
What people ask us about this.
Further reading
Third-party sites. Not ours, not endorsed, not kept current by us — just the places worth going next.
Sources
- Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007), No. 3D06-1220 — FindLaw Caselaw, Apr 2007
- Schilling v. Herrera, 952 So. 2d 1231, 2007 WL 981627 — CourtListener
- Schilling v. Herrera — opinion PDF — Adrian P. Thomas, P.A.
- When do probate proceedings bar a claim for intentional interference with an expectancy of inheritance? — Florida Probate & Trust Litigation Blog, Apr 2007
- Tortious interference with an inheritance or expectancy in Florida — AboutFloridaProbate.com, Mar 2014
- Fla. Stat. §733.109 — Revocation of probate — The Florida Senate
- Fla. Stat. §733.212 — Notice of administration — The Florida Senate
- Fla. Stat. §732.5165 — Effect of fraud, duress, mistake, and undue influence — The Florida Senate
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Nearly every case in this archive turned on something ordinary — an unwitnessed page, a stale beneficiary line, a document nobody could find. Those are cheap to fix while you're alive and expensive to fix afterward.