DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIAM GUNDLACH, III, individually and as Co-Personal 

Representative of the ESTATE OF WILLIAM GUNDLACH,

Appellant,

v.

JON ERIK GUNDLACH, as Co-Personal Representative of the

ESTATE OF WILLIAM GUNDLACH and Trustee of WG III TRUST,

WILLIAM GUNDLACH IV, MARY CATHERINE GUNDLACH,

SARAH ELIZABETH GUNDLACH LAMBOUSY,

CHRISTOPHER CALLAWAY GUNDLACH, and

JOHN MACGREGOR GUNDLACH,

Appellees.

No. 4D21-930

[May 25, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 

PRC190005372.

Laura Bourne Burkhalter of Laura Bourne Burkhalter, P.A., Fort 

Lauderdale, for appellant.

Scott A. Weiss of Scott A. Weiss, P.A., Fort Lauderdale, for appellees.

CONNER, C.J.

Appellant, William Gundlach III, individually and as Co-Personal 

Representative of the Estate of William Gundlach, appeals the trial court’s 

order dismissing with prejudice as untimely his amended petition for 

construction and declaration of rights under a testamentary trust. 

Additionally, Appellant seeks an appellate determination that certain 

provisions of the testamentary trust are contrary to public policy pursuant 

to section 736.0404, Florida Statutes (2021). Because we determine that 

Appellant’s amended petition did not amount to a challenge of the validity 

of the will within the meaning of section 733.212(3), Florida Statutes 

(2021), we reverse and remand for further proceedings. We decline to 

address whether provisions of the testamentary trust violate public policy 
2

or section 736.0404, because the issue was not ruled upon by the probate 

court and is premature for appellate review.

Background

The decedent, William Gundlach, Jr., was an attorney. This appeal 

concerns the probate of his last will and testament. The will names his 

two sons, Appellant and Appellee, Jon Erik Gundlach, as co-personal 

representatives of his estate. The will also names Jon as the trustee of a 

testamentary trust. Appellant’s five children are beneficiaries under the 

testamentary trust, and they are the remaining appellees in this case. The 

grandchildren appellees filed an answer brief in this appeal and Jon filed 

a notice of joinder to the grandchildren’s answer brief. All the appellees 

will collectively be referred to as “Appellees.”

Article VIII of the will recites that the residuary estate be divided into 

two equal parts, with one part devised to Jon outright, and the other part 

devised to the “WGIII Trust” (“the Trust”). The will explained that initially 

the intent was to benefit both sons equally by leaving them both portions 

of the estate outright on the assumption both sons would leave their 

inheritance to their wives and biological children. That changed when 

Appellant’s first wife and mother of Appellant’s five children died. The will 

explained that Appellant then married a woman with two children from a 

previous marriage, after signing an antenuptial agreement which said that 

Appellant could give his second wife any assets he may acquire. The will 

expressed the decedent’s fear that some or all the assets initially devised 

to the Appellant could be transferred, gifted, or devised by the Appellant 

to his second wife or that she might have a claim to them by virtue of her 

marriage. The will expressed the decedent’s additional fear that 

Appellant’s second marriage could potentially deprive Appellant’s children 

of the decedent’s assets, nullifying the decedent’s intent that the assets 

would ultimately go to Appellant’s five children. To address those fears, 

the will placed all the assets which Appellant would have received outright 

in a trust, so that Appellant would never have any direct or beneficial 

ownership interest in them whatsoever.

The will provided that the trustee of the Trust would be Jon, and that 

the term of the Trust would be for the life of Appellant. The stated purpose 

of the Trust is to provide, out of Trust income, full back up for all of

Appellant’s medical needs during his lifetime, with the balance of the 

income paid and divided among Appellant’s children during Appellant’s 

life, and that upon Appellant’s death, the Trust would terminate, and all 

principal and undistributed income would be paid to Appellant’s children.
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Notwithstanding the above provisions, the will stated that if at the time 

of decedent’s death or any time thereafter, Appellant is not married 

because of divorce, death, or otherwise, then the Trust shall not be 

established, and if established, it shall terminate, and all the assets which 

would have been placed in the Trust would be delivered outright to 

Appellant, provided Appellant first executed an irrevocable agreement 

between himself and his children agreeing that all assets he received from 

the estate will be conveyed only to his biological children and no others. 

The will stated multiple times the decedent’s intent that one-half of his 

estate would ultimately go to Appellant’s biological children.

After the decedent passed away, Appellant and Jon filed a petition for 

administration requesting the will be admitted to probate and that they be 

appointed co-personal representatives. The will was admitted to probate 

and Appellant and Jon were appointed co-personal representatives.

Subsequently, Appellant filed his “Amended Petition for Construction 

and Declaration of Rights” seeking (1) a determination as to the validity of 

all or part of the testamentary trust; (2) construction of the testamentary 

trust; and (3) a declaration of rights under the testamentary trust 

pursuant to section 736.0201(4)(a), (e)–(f),” Florida Statutes (2021).1 

Appellant asserted that the condition that he no longer be married in order 

to receive an outright bequest was unlawful and contrary to public policy. 

In Count 1, Appellant alleged he was in doubt as to whether the condition 

regarding his marriage can be given legal effect and requested a 

determination as to the validity of the condition imposed in the Trust that 

1 Section 736.0201(4)(a), (e)–(f) provides:

(4) A judicial proceeding involving a trust may relate to the validity, 

administration, or distribution of a trust, including proceedings to:

(a) Determine the validity of all or part of a trust;

. . . .

(e) Ascertain beneficiaries; determine any question arising in the 

administration or distribution of any trust, including questions of 

construction of trust instruments; instruct trustees; and determine the 

existence or nonexistence of any immunity, power, privilege, duty, or 

right;

(f) Obtain a declaration of rights; . . . .

§ 736.0201(4)(a), (e)–(f), Fla. Stat. (2021).
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for him to inherit a bequest outright, his current marriage must terminate. 

He further alleged that substantial legal and financial consequences 

depend upon the judicial declaration of rights and interest. In Count 2,

Appellant sought a determination of the validity of all or part of the Trust 

under section 736.0201(4)(a), relating to the same conditions discussed in 

Count 1.

Appellees moved to strike Appellant’s amended petition arguing that 

where Appellant’s amended petition challenged the validity of the will, the 

challenge was untimely pursuant to section 733.212(3) because it was not 

filed within three months of his receipt of the notice of administration. 

Appellees argued that while the amended petition included reference to 

construction of provisions of the Trust, the crux of the petition sought to 

declare specific provisions of the will invalid. Appellees argued that 

Appellant’s attempt to challenge the validity of provisions of the will was 

therefore untimely.

At the hearing on the motion, Appellant denied that the amended 

petition sought to attack the validity of the will, and argued that, instead, 

the amended petition sought construction and a declaration of whether 

certain will provisions should be given legal effect, such that the timeliness 

of the petition was not subject to the limitations of section 733.212(3). 

However, the probate court granted Appellees’ motion and dismissed 

Appellant’s amended petition as untimely pursuant to section 733.212(3). 

Following the denial of his motion for rehearing, Appellant gave notice of 

appeal.

Appellate Analysis

On appeal, Appellant contends the lower court erroneously treated his 

construction or declaration action as a will contest and held Appellant to 

the time limitation for an interested person to object to the validity of a 

will, as set forth in section 733.212(3). We agree.

Our recent decision in Tendler v. Johnson, 332 So. 3d 521 (Fla. 4th DCA 

2021), is instructive. In Tendler, the decedent was the primary beneficiary 

of a separate trust created by his grandfather. Id. at 522–23. A provision 

in that trust granted the decedent a limited power of appointment over the 

trust’s assets which could be exercised in favor of anyone except the 

decedent himself, his creditors, or his estate. Id. The decedent’s will 

attempted to exercise the limited power of appointment contained in the 

separate trust. Id. After the decedent’s will was admitted into probate, 

the decedent’s brother did not file any objections to the validity of the will 

within the three-month limitation. Id. at 523. Subsequently, the personal 
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representatives of the will filed a petition for instruction in connection with 

the trustee’s refusal to transfer all assets from the trust pursuant to the 

decedent’s exercise of the special power of appointment in the will. Id. 

Upon being served formal notice of the petition for instruction, the 

decedent’s brother asserted that the decedent’s exercise of the limited 

power of appointment in his will was not effective because it attempted to 

appoint the assets in such a way that those assets could be used to pay 

the creditors of the decedent’s estate, contrary to the provisions of the 

trust. Id. The personal representatives argued the brother’s claim was 

untimely under section 733.212(3). Ultimately, the trial court ruled that 

the brother’s challenge to the validity of the will was time-barred. Id. at 

524.

On appeal, however, we concluded that the brother’s claim “was not a 

challenge to the validity of the will within the meaning of section 

733.212(3).” Id. In reaching this conclusion, we explained:

Florida requires strict compliance with its statutory provisions 

in the execution of wills. See § 732.502, Florida Statutes 

(2018). The “will must be in writing,” “[t]he testator must sign 

the will at the end,” the testator must sign “in the presence of 

at least two attesting witnesses,” and the “witnesses must sign 

the will in the presence of the testator and in the presence of 

each other.” § 732.502, Fla. Stat. (2018).

The probate of a will signifies that a will was properly executed 

and witnessed, and that the testator had testamentary 

capacity when executing the will. § 733.103(2), Fla. Stat. 

(2018) (“[T]he probate of a will in Florida shall be conclusive 

of its due execution; that it was executed by a competent 

testator, free of fraud, duress, mistake, and undue influence; 

and that the will was unrevoked on the testator’s death.”).

The use of the word “validity” in chapter 733 pertains to the 

compliance with the technical requirements of execution—

signatures and witnesses—and to the testamentary capacity 

of the testator—the required factors for a will to be probated.

Section 733.107, Florida Statutes (2018), provides that “[i]n 

[a] proceeding[ ] contesting the validity of a will, the burden 

shall be upon the proponent of the will to establish prima

facie its formal execution and attestation.” § 733.107(1), 

Fla. Stat. (2018) (emphasis added). “Thereafter, the 

contestant shall have the burden of establishing the grounds 
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on which the probate of the will is opposed or revocation 

is sought.” Id. (emphasis added).

Consistent with section 733.107, section 733.212(3), Florida 

Statutes (2018), provides that

[a]ny interested person on whom a copy of the 

notice of administration is served must object to 

the validity of the will, the venue, or the 

jurisdiction of the court by filing a petition or 

other pleading requesting relief in accordance 

with the Florida Probate Rules on or before the 

date that is 3 months after the date of service of 

a copy of the notice of administration on the 

objecting person, or those objections are forever 

barred.

(emphasis added). Section 733.212(3)’s use of the term 

“validity of the will” relates back to the use of the same term 

in section 733.107, so it pertains to the admission of a will to 

probate or a revocation of probate. Here, Tendler challenges 

not the validity of the will but the effectiveness of the 

Decedent’s attempted exercise of the Rison Trust’s limited 

power of appointment in article 4 of the will. Tendler’s 

challenge is outside of the three specific issues covered by 

section 733.212(3). That statute speaks of the “validity of the 

will,” not of the “validity of the will or a part thereof.”

Id. at 524–25 (alterations in original). Thus, we reasoned that both the 

brother and the personal representatives essentially sought to have the 

probate court construe a provision of the will. Id. at 525. We explained:

A petition to construe a will is premature before the will has 

been admitted to probate. § 733.213, Fla. Stat. (2018) (“A will 

may not be construed until it has been admitted to probate.”); 

In re Est. of Dahl, 125 So. 2d 332, 335 (Fla. 2d DCA 1960) 

(explaining that “[n]o petition or complaint for construction 

may be maintained in any court until the will has first been 

probated”); Cody v. Cody, 127 So. 3d 753, 756 (Fla. 1st DCA 

2013) (holding that the order construing a will to determine 

beneficiaries was premature as “the probate court has not 

actually admitted the will to probate”); First Nat’l Bank of 

Miami v. Risolia, 200 So. 2d 260, 260 (Fla. 3d DCA 1967) 

(finding that “[t]he circuit court has jurisdiction to construe 
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the provisions of a will so long as the will has first been 

probated and the circuit court was the court first obtaining 

jurisdiction for construction”).

Id. (alterations in original). We acknowledged that the brother’s “objection 

to the effectiveness of the [d]ecedent’s attempted exercise of the [trust’s]

power of appointment required the probate court to construe” that 

provision of the will in conjunction with the trust, but that “[t]his was not 

a challenge to the ‘validity of the will’ within the meaning of section 

733.212(3).” Id.

Applying our analysis in Tendler, Appellant’s petition in this case 

likewise did not challenge the “validity of the will” within the meaning of 

section 733.212(3). As discussed above, Appellant’s petition sought (1) a 

determination as to the validity of all or part of the testamentary trust; (2) 

construction of the testamentary trust; and (3) a declaration of rights 

under the testamentary trust pursuant to section 736.0201(4)(a), (e)–(f), 

Florida Statutes (2021). Appellant’s petition challenged the effectiveness 

of the provision of the will concerning the condition regarding his marriage. 

However, pursuant to Tendler, such a challenge in Appellant’s petition to 

“all or part of the testamentary trust” created by the will did not amount 

to a challenge to the “validity of the will” as used in section 733.212(3), 

which Tendler explains refers to the technical requirements for a will to be 

probated.

As such, guided by the analysis in Tendler, we hold that section 

733.212(3) does not bar Appellant’s petition. Accordingly, the probate 

court erred in dismissing Appellant’s petition as untimely under section 

733.212(3). We reverse the order granting Appellees’ motion and 

dismissing Appellant’s amended petition with prejudice, and remand for 

further proceedings.

Reversed and remanded for further proceedings.

GERBER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.