DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GEORGES M. DELBROUCK,

Appellant,

v.

MARIA EBERLING as Personal Representative of the Estate of LEON G. 

DELBROUCK, AIME GUY DEBROUCK and CLAUDE DELBROUCK,

Appellees.

No. 4D16-2341

[August 30, 2017 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Marc H. Gold, Judge; L.T. Case Nos. PRC-14-000186 and 

PRC-14-002186.

Brian C. Valentine of the Law Office of Mosier Valentine, P.A., Fort 

Lauderdale, for appellant.

Scott A. Weiss of Selzer & Weiss, Fort Lauderdale, for Appellee Maria 

Eberling.

John G. Jordan of John G. Jordan, P.A., Fort Lauderdale, for Appellee 

Claude Delbrouck.

CYNAMON, ABBY, Associate Judge.

Georges Delbrouck appeals from an order granting summary judgment 

in a probate case. Appellant, a beneficiary under the subject will, argues 

that he is an interested person with standing to contest the will and thus, 

it was error for the trial court to grant summary judgment where he 

pleaded undue influence and lack of testamentary capacity. We agree and 

reverse. We find it unnecessary to address the remaining arguments on 

appeal.

Leon G. Delbrouck died January 1, 2014, and was survived by his three 

sons—appellant, Aime Guy Delbrouck, and Claude Delbrouck. About 

three weeks after the decedent’s death, the probate court entered an order 

admitting his June 26, 2013 will to probate. The order noted that the 

decedent’s will appointed Maria Eberling—Aime’s ex-girlfriend—as the 
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personal representative. Aime was appointed as the substitute personal 

representative. The will divided the decedent’s assets equally among his 

three sons, who would have been the decedent’s heirs at law had there 

been no will.

In May 2014, appellant petitioned for revocation of probate. Appellant 

eventually filed a second amended petition, alleging that the will was 

procured by undue influence and overreaching on the part of Aime and 

the personal representative, the decedent lacked capacity, and the 

personal representative failed to notify appellant of the administration of 

the estate because the notice was mailed to the wrong address. The 

petition further alleged that the personal representative gave preference to 

Aime in the administration of the Estate. Appellant sought, inter alia, 

revocation of probate and a vacation of the appointment of the personal 

representative.

Without responding to appellant’s petition, the personal representative

served a motion for summary judgment in February 2016, alleging that 

even if there had been undue influence or if the will had been executed 

when the decedent lacked testamentary capacity, appellant would not 

receive any benefits by successfully revoking probate. The personal 

representative filed affidavits from Aime and Claude, who each attested 

that they would nominate the same personal representative and reject 

appellant’s attempt to seek an alternate representative.

Appellant filed two memoranda of law in opposition to the motion for 

summary judgment, arguing, inter alia, that there was undue influence, 

the decedent lacked testamentary capacity, and the motion erroneously 

relied on Newman v. Newman, 766 So. 2d 1091 (Fla. 5th DCA 2000). 

Appellant further alleged that the personal representative allowed Aime 

access to the estate’s real property and assets to the exclusion of the other 

beneficiaries. Specifically, appellant claimed the personal representative 

demanded that he vacate real property owned by the estate but did not 

make the same demand of Aime, who occupied a warehouse property 

owned by the estate, or of Claude, who occupied a condominium owned by 

the estate. Moreover, appellant added that the personal representative 

and Aime removed personal property from the decedent’s former residence, 

and destroyed or disposed of it, without providing an accounting. 

Appellant submitted various exhibits in opposition to the summary 

judgment motion, including deposition testimony by Aime, by the personal 

representative, and by the attorney who drafted the will.

In June 2016, the probate court conducted a hearing on the motion for 

summary judgment. The personal representative argued that appellant 
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was in a no-win situation because: (1) appellant did not allege that there 

was a prior will that would give him more than what he received under the 

disputed will; (2) even if the will was not probated, appellant would have 

been entitled to the same one-third share of the estate through intestate 

succession; and (3) the personal representative would remain unchanged

based on the affidavits from appellant’s two brothers. Appellant 

acquiesced that both the will and intestate succession would give him the 

same one-third distribution of the decedent’s estate but argued still for 

revocation of the will based on its alleged improper creation.

The probate judge initially suggested deferring ruling on the motion for 

summary judgment until an evidentiary hearing was held on an 

outstanding motion to remove the personal representative and on another 

motion to dismiss that motion to remove the personal representative. 

However, the parties disputed that course of action, and after more 

argument and a recess, the probate judge made the following statement 

on the record:

Okay. I’ve been going through this six different ways and I 

brought it up and it appears that there is no question in my 

mind as to the issue of whether we go forward on the will or 

we go intestate. The consequences of that decision are 

meaningless. There is nothing. And given the reliance on 

Newman, I just want to quote one sentence and I think I read 

this two or three times, but let me just read it again. I think 

this is at page three. “An interested person is defined as any 

person that may reasonably be expected to be affected by the 

outcome of the particular proceeding involved.”

I don’t believe that Georges Delbrouck is affected in any way 

on the outcome of this issue. I don’t think he has standing to 

make an argument on this and I’m going to agree with the 

Petitioner on this matter.

Having said that, I want -- there is an outstanding Motion to 

Dismiss regarding the motion to remove the personal 

representative. I want that set quickly. I want, and depending 

on my ruling I want if there is going to be an evidentiary 

hearing on that, I want that set quickly. But as to today’s 

hearing, I will agree with Mr. -- the Petitioners -- well, whoever 

I said I agree with, the Respondent.

The probate court ultimately granted the motion for summary 

judgment. The written order stated that the court had heard the 
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arguments of counsel and had reviewed the record summary judgment 

evidence, but the order did not provide the court’s reasoning for granting 

summary judgment in favor of the personal representative. This appeal 

ensued.

Appellant now argues on appeal that he is a substantial beneficiary 

under the will and a putative heir under intestacy law, making him an 

“interested person” in every sense of the term, and thus the probate court 

erred in granting summary judgment. Appellant also argues that 

summary judgment was further precluded since there were disputed 

issues of material fact regarding appellant’s claims for undue influence 

and lack of testamentary capacity. 

The personal representative contends that summary judgment was 

appropriate as a matter of law. She maintains that while appellant is an 

interested person by being a named beneficiary, in order to establish his 

standing to seek revocation of probate, appellant would have had to 

establish also that he would benefit from a successful revocation 

proceeding. The personal representative further argues that the motion 

for summary judgment did not address undue influence or lack of 

testamentary capacity, and even if the allegations were true, which she 

disputes, appellant still would not be able to establish that he had a benefit 

to gain by revoking the will.

We review an order granting summary judgment de novo. Dennis v. 

Kline, 120 So. 3d 11, 20 (Fla. 4th DCA 2013). Summary judgment is 

proper only where there is no genuine issue of material fact and where the 

moving party is entitled to judgment as a matter of law. Volusia Cty. v. 

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). We also 

review de novo the interpretation of statutes. Duncombe v. Adderly, 991 

So. 2d 1013, 1015 (Fla. 4th DCA 2008).

Here, the trial court committed two errors in granting the motion for 

summary judgment. First, it was error to grant the motion for summary 

judgment on the basis that appellant did not have standing. Second,

because appellant had standing, it was error to grant summary judgment 

where the personal representative failed to refute the factual allegations of 

undue influence and lack of testamentary capacity that were raised in the 

second amended petition to revoke probate. We now address each error 

in turn.

“[S]tanding to bring or participate in a particular legal proceeding often 

depends on the nature of the interest asserted.” Hayes v. Guardianship of 
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Thompson, 952 So. 2d 498, 505 (Fla. 2006).1 An interested person may 

seek revocation of probate. See § 733.109(1), Fla. Stat. (2014). An 

interested person is “any person who may reasonably be expected to be 

affected by the outcome of the particular proceeding involved.” § 

731.201(23), Fla. Stat. (2014). Even the personal representative of an 

estate is deemed an “interested person” in proceedings affecting the estate 

or the rights of a beneficiary of the estate. Id.

Here, appellant falls within the definition of an interested person within 

the meaning of section 733.109(1), since he was both a beneficiary under 

the will and an heir at law, and he would have been affected by the 

outcome of the revocation petition insofar as a successful revocation would 

have subjected the personal representative—whom appellant alleged was 

improperly administering the estate and giving preferential treatment to 

the other beneficiaries—to removal under section 733.504(10), Florida 

Statutes (2014). There is no requirement in the plain language of the 

statute that appellant prove his share of the estate would have been 

different if his revocation attempt succeeded. Consequently, the trial 

court’s and the personal representative’s reliance on Newman was 

misplaced insofar as they interpreted the holding in Newman to find that 

appellant lacked standing to challenge the will. Newman is easily 

distinguishable from the instant case.

The petitioner in Newman was found not to be an interested person and 

therefore lacked standing because he had been disinherited in the 

challenged 1962 will as well as in a previous 1954 will. 766 So. 2d at 

1093-94. Moreover, the Newman court noted that seeking justice by 

punishing alleged will forgers was an insufficient basis to confer standing 

to challenge a will. Id. at 1094. Thus, the only logical reason for the 

petitioner’s challenge, the court found, was to delay the distribution of the 

decedent’s estate such that his stepmother’s interest in the estate, which 

was the entire estate, would lapse. Id. As such, the court held that the 

petitioner should not benefit by his intentional efforts to delay distribution 

of the estate. Id. The Fifth District later interpreted its Newman decision 

to mean that “a petitioner may not be an interested person in revocation 

and removal proceedings if previous and presumptively valid wills have 

been discovered that, similar to the current will, do not include petitioner 

as a beneficiary of the estate.” Wehrheim v. Golden Pond Assisted Living 

1 For example, in Hayes, our supreme court held that “a person, including an 

heir of a ward, has standing to participate in a guardianship proceeding if the 

applicable provisions of either the Florida Guardianship Law or the Florida 

Probate Rules entitle the person to notice of the proceeding or authorize the 

person to file an objection in the proceeding.” Id. at 500.
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Facility, 905 So. 2d 1002, 1006 (Fla. 5th DCA 2005) (citations omitted). 

Here, appellant was a beneficiary under the challenged will, was not 

disinherited in a prior will, and did not seek to delay distribution until the 

sole beneficiary’s interest lapsed in order to obtain an interest, rendering 

Newman wholly inapplicable.

While the affidavits of appellant’s brothers suggest that the current 

personal representative would receive preference to be reappointed

pursuant to section 733.301(1)(b), Florida Statutes (2014), even if 

appellant were to successfully revoke the will, this preference would not 

result in mandatory or automatic appointment. See In re Estate of Snyder, 

333 So. 2d 519, 520 (Fla. 2d DCA 1976) (noting that an individual may be 

considered unsuitable to administer an estate if there is an adverse 

interest, hostility to those immediately interested in the estate, or an 

interest adverse to the estate). The Snyder court further held:

Where the record supports the conclusion that a person 

occupying the position of statutory preference does not have 

the qualities and characteristics necessary to properly 

perform the duties of an administrator, it would be an 

anomaly to hold that a probate court, which has historically 

applied equitable principles in making its judgments, does not 

have the discretion to refuse to appoint him simply because 

he did not fall within the enumerated list of statutory 

disqualifications.

Id. at 521. Here, if the will were revoked as a result of the undue influence 

of Aime and Maria, appellant would have a reasonable argument that the 

probate court should refuse to reappoint Maria as personal representative. 

Thus, because appellant would potentially gain the appointment of a 

different personal representative if the will were revoked, appellant has a 

legally cognizable interest that would be affected by the outcome of the 

revocation petition.

Next, the effect of the personal representative’s failure to file an answer 

to the second amended petition to revoke probate, or to otherwise refute 

the claims raised in the petition, was to leave unrebutted the facts alleged 

by appellant in the complaint. See Fla. R. Civ. P. 1.110(e). Specifically, 

these claims were: (1) that the decedent lacked capacity at the time he 

executed the will because the medication he was taking affected his 

cognitive abilities; and (2) that the decedent was unduly influenced by 

Aime and Maria, who “removed the decedent from his home” and “spirited 

him away” to a lawyer’s office to execute a new will.
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Moreover, appellant’s exhibits in opposition to the motion for summary 

judgment supported the allegations of undue influence and lack of 

testamentary capacity raised in the petition. The exhibits included 

deposition testimony from Aime stating that he had driven the decedent 

and the personal representative to the attorney’s office, that he suggested 

the appointment of Maria as the personal representative, and that he had 

a power of attorney allowing him to control the decedent’s checkbook. The 

affidavits also included medical notes stating that the decedent had some 

memory deficits that were filled in by his son, who was knowledgeable 

about the decedent’s health condition, as well as additional deposition 

testimony from Aime claiming not to be sure or not to remember whether 

the decedent had been diagnosed with dementia or Alzheimer’s.

While it was permissible for the personal representative to file a motion 

for summary judgment without filing an answer to the second amended 

petition for revocation, it was error for the court to grant summary 

judgment where appellant had standing to seek revocation and the 

unchallenged petition stated causes of action for undue influence and lack 

of capacity. The petition, and subsequent deposition evidence, raised 

factual issues which were not refuted by the personal representative at the 

summary judgment hearing.

The Second District considered this issue in Hemker v. Abdul, 716 So.

2d 817 (Fla. 2d DCA 1998). Hemker, like the case at bar, involved a 

petition to revoke probate. Id. at 818. Also just like in the case at bar, the 

petition in Hemker to revoke probate asserted lack of testamentary 

capacity and undue influence. Id. The trial court entered summary 

judgment against the proponent of the petition to revoke probate. Id. On 

appeal, the Second District reversed, finding that both the pleadings and 

the deposition of the proponent of the will raised unresolved factual issues 

as to the presence of undue influence on the decedent and the decedent’s 

testamentary capacity. Id. The Second District also noted that reversal of 

the summary judgment was necessary because the proponent of the will 

failed to present any evidence to counter the allegations of undue influence 

and lack of testamentary capacity. Id. In the case at bar, just as in 

Hemker, the personal representative failed to present any evidence at the 

summary judgment hearing to refute the allegations of undue influence 

and lack of testamentary capacity raised by the second amended petition.

In conclusion, we hold that it was error for the probate court to grant 

summary judgment. As an interested person, appellant had standing to 

contest the will. Moreover, the personal representative’s failure to respond 

to the allegations in the second amended petition left unrebutted 

appellant’s claims of undue influence and lack of testamentary capacity. 
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Therefore, the court erred in granting the personal representative’s motion 

at this point in the proceedings. Thus, we reverse the summary judgment 

and remand to the probate court for further proceedings consistent with 

this opinion.

Reversed and Remanded.

DAMOORGIAN, J., concurs.

KUNTZ, J., concurs in result only with opinion.

KUNTZ, J., concurring in result.

I agree that reversal is required because section 733.109(1), Florida 

Statutes (2015), provides that any interested person may commence a 

proceeding to revoke the probate of a will. While the appellant will receive 

the same one-third share of the estate regardless of whether the estate is 

probated or distributed intestate, the legislature has not required an 

interested person to demonstrate that their share will increase before the 

person may seek revocation of probate. However, while I join in the 

reversal, I would limit our decision to the grounds the court actually 

decided. We do not need to address other arguments regarding the court’s 

summary judgment.

I also recognize the court was seeking to proceed in a manner that 

would not prejudice any party and would expedite the distribution of the 

estate. In the briefs and at oral argument, counsel struggled to explain 

how the actual beneficiaries would benefit by revoking the probate. In fact, 

it was agreed that each beneficiary will receive a one-third share of the 

estate regardless of the manner in which it is distributed. The appellant’s 

actual complaints are with the personal representative, as evidenced by a 

separate civil action he filed seeking to remove her. I agree with the 

probate judge that the issues the appellant raises in his section 733.109 

petition would be better and more efficiently addressed by resolving that 

separate action. Unfortunately, the appellant has not sought to expedite 

that litigation.

The court granted summary judgment based upon its conclusion that 

the appellant lacked standing. I agree that pursuant to section 733.109, 

the appellant had standing to seek to revoke the probate. Therefore, I 

would reverse the entry of summary judgment on that basis, but would go 

no further.
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* * *

Not final until disposition of timely filed motion for rehearing.