DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN P. KELLAR,

Appellant,

v.

ESTATE OF JOHN W. KELLAR,

Appellee.

No. 4D17-3019

[October 24, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Mark A. Speiser, Judge; L.T. Case No. PRC 140003001.

Henny L. Shomar and Douglas H. Reynolds of Tripp Scott, P.A., Fort 

Lauderdale, for appellant.

Scott A. Weiss, Fort Lauderdale, for appellee.

GERBER, C.J.

The decedent’s son appeals from the circuit court’s order granting the 

decedent’s wife’s petition for administration in part and denying the son’s 

counterpetition for administration, and from the circuit court’s order 

denying the son’s motion for rehearing. We affirm both orders. The wife 

presented competent substantial evidence to raise the rebuttable 

presumption that the son exerted undue influence over the decedent to 

procure the decedent’s revocation of his will favoring the wife, and that 

upon the burden of proof shifting to the son, the son failed to establish, by 

a preponderance of the evidence, the nonexistence of undue influence. See 

RBC Ministries v. Tompkins, 974 So. 2d 569, 572 (Fla. 2d DCA 2008) 

(“[O]nce a will contestant establishes the existence of the basis for the 

rebuttable presumption of undue influence, the burden of proof shifts to 

the proponent of the will to establish by a preponderance of the evidence 

the nonexistence of undue influence.”).

In reaching our conclusion, we acknowledge that the circuit court, in 

rendering its final order, made three erroneous factual findings regarding: 

whether the son drove the decedent to meet with the son’s lawyer; the 

timing of when the guardian removed the decedent from the home in 
2

relation to a domestic disturbance between the wife and the decedent; and 

whether the son was a beneficiary of the decedent’s earlier wills. However, 

viewing these few erroneous factual findings within the perspective of the 

circuit court’s lengthy factual findings, we conclude that the erroneous 

factual findings were inconsequential to the circuit court’s ultimate finding 

that the son failed to establish, by a preponderance of the evidence, the 

nonexistence of undue influence. Thus, the erroneous factual findings 

were harmless.

We also acknowledge that the circuit court, as an alternative basis for 

its orders, erroneously concluded the decedent’s prenuptial agreement 

precluded the decedent from revoking his will favoring the wife. See 

Lindeburg v. Lindeburg, 162 So. 2d 1, 2-3 (Fla. 3d DCA 1964) (“In a 

contract to make a will, the promisor has the right to change his will . . . 

the right being enforced against the promisor is the contract right, and not 

the will, in the case of the breached contract to make a will . . . .”) (footnotes 

omitted). However, that error is harmless given our affirmance of the 

circuit court’s finding that the son failed to establish, by a preponderance 

of the evidence, the nonexistence of undue influence.

We conclude without further discussion that the son’s other arguments 

on appeal, not addressed in this opinion, lack merit.

In sum, as our sister court stated in Estate of Brock, 692 So. 2d 907

(Fla. 1st DCA 1996):

It is axiomatic that the trial court’s resolution of conflicting 

evidence will not be disturbed by a reviewing court in the 

absence of a clear showing of error, or that the conclusions 

reached are erroneous. In reviewing the trial court’s findings, 

they must be given the benefit of all reasonable inferences that 

may be drawn from the evidence. Further, we are prohibited 

from reevaluating the evidence and substituting our judgment 

for that of the finder of the facts.

Id. at 913 (internal citations omitted).

Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.