FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-608

LT Case No. 2018-11957-PRDL

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STEVEN CHAUNCY,

Appellant,

v.

DENNIS LEE GORDEN AND THE 

ESTATE OF ADDISON WOOLLEN 

MCNAIRY,

Appellee.

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On appeal from the Circuit Court for Volusia County.

Margaret W. Hudson, Judge.

Thomas C. Allison, of Thomas C. Allison, P.A., Winter Park, and 

Robin F. Hazel, of Hazel Law, P.A., Hollywood, for Appellant.

Jerry B. Wells, of Jerry B. Wells, P.L., Daytona Beach, for 

Appellee.

November 3, 2023

HARRIS, J.

Addison McNairy passed away on August 31, 2018. A week 

later, Appellant, Steven Chauncy, filed a petition for 

administration of the decedent’s estate, seeking to probate a will 

McNairy purportedly executed in 2007 (the “2007 Will”). Shortly 
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thereafter, Appellee, Dennis Gorden, filed an adversarial petition

seeking to probate a will executed by McNairy in 2018 (the “2018 

Will”). Each side filed challenges and objections to the other’s will. 

Following an evidentiary hearing, the court agreed with Gorden’s 

position and found the 2007 Will to be invalid and admitted the 

2018 Will to probate. Gorden successfully administered the estate, 

and in July 2022, the court granted his petition for discharge.

Three months later, Chauncy filed a petition to reopen the 

estate, alleging that Gorden committed fraud on the court by 

failing to disclose the existence of a 1998 will (the “1998 Will”). 

Chauncy attached a copy of the 1998 Will to his petition. That will 

named two beneficiaries: McNairy’s brother, John, and his friend 

and companion, Nelegene Morgan.1 Specifically, the terms of the 

1998 Will provided:

I do hereby give all my estate to the 

following named 2 person/persons or the 

survivor of them in equal shares:

Nelegene Morgan

John V. McNairy

Both named beneficiaries predeceased McNairy. 

Gorden moved to dismiss the petition to reopen the estate, 

arguing in part that Chauncy lacked standing, as he was not an 

interested party under the 1998 Will. Again, the trial court agreed 

with Gorden, finding that the use of the word “survivor” in the 

1998 Will referred to the survivor of the two persons named in the 

will, not the heirs of those persons. Finding that there was no way

to amend the petition to create standing, the court dismissed 

Chauncy’s petition with prejudice. This appeal followed. 

“A trial court’s order granting a motion to dismiss with 

prejudice is reviewed de novo.” Jordan v. Nienhuis, 203 So. 3d 974, 

1 In his petition, Chauncy claimed to be the son and sole heir 

of Nelegene Morgan. Chauncy was not an heir or in any other way 

related to the decedent.
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975 (Fla. 5th DCA 2016). Throughout this appeal, the parties have 

spent inordinate amounts of time arguing about the fraud 

allegations, whether a cause of action was sufficiently pled, and 

whether, if allowed to amend his petition, Chauncy could make a 

stronger case for fraud. In so doing, short shrift is given to the 

court’s more basic and dispositive finding—that Chauncy is not an 

interested person under the 1998 Will and therefore he lacks 

standing to bring the action to reopen the estate and revoke the 

probate of the 2018 Will.

“[W]hether a person is an ‘interested person’ is an element 

that must be established by the petitioner seeking revocation of 

probate.” Gordon v. Kleinman, 120 So. 3d 120, 121 (Fla. 4th DCA 

2013) (quoting Wehrheim v. Golden Pond Assisted Living Facility, 

905 So. 2d 1002, 1006 (Fla. 5th DCA 2005)). Because Appellant 

attached a copy of the 1998 Will to his petition to reopen and 

revoke probate, the trial court properly considered it in ruling on 

the motion to dismiss. See K.R. Exch. Servs., Inc. v. Fuerst,

Humphrey, Ittleman, PL, 48 So. 3d 889, 894 (Fla. 3d DCA 2010) 

(“It is well settled that the court must consider an exhibit attached 

to the complaint together with the complaint’s allegations, and 

that the exhibit controls when its language is inconsistent with the 

complaint’s allegations.”). Lack of standing may be considered on 

a motion to dismiss if the defense appears on the face of the 

complaint or prior pleading. See Wilmington Sav. Fund Soc’y, FSB 

v. Contreras, 278 So. 3d 744, 748 (Fla. 5th DCA 2019).

 

Chauncy claims that when the 1998 Will left McNairy’s estate 

to Nelegene and John “or the survivor of them,” “survivor” means 

any heirs of the named beneficiaries, which includes himself as the 

son of Nelegene. The court below concluded that Chauncy

incorrectly interprets this provision of the will. We agree. There 

was nothing in the will or other circumstances to show that the 

word ‘survivor’ intended to be given any meaning other than its 

common one. See Porter v. Est. of Myrick, 522 So. 2d 99, 100 (Fla. 

3d DCA 1988). Generally, “the word ‘survivor’ should be given its 

literal interpretation as meaning one who outlives another, one of 

two or more persons who live after the other or others have died.” 

Id. (quoting In re Gallop’s Est., 248 So. 2d 686, 688 (Fla. 4th DCA 

1971)). The term ‘survivor’ “is limited to the individuals of such a 

class, and does not include their children.” Id. Using the term
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‘survivor’ will generally “exclude representatives so that the last 

survivor of a class will take the whole share of one dying although 

others of the class have all died leaving issue.” Id.

Because Chauncy is not an interested person as a beneficiary 

under the 1998 Will, as he claimed, the trial court properly 

dismissed the complaint. And because it conclusively appears that 

there is no possible way for Chauncy to now plead his way into 

standing, the court did not abuse its discretion in refusing to grant 

leave to amend. See Obenschain v. Williams, 750 So. 2d 771, 772–

73 (Fla. 1st DCA 2000).

AFFIRMED.

BOATWRIGHT, J., concurs.

LAMBERT, J., concurs with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Case No. 5D23-608

LT Case No. 2018-11957-PRDL

LAMBERT, J., concurring with opinion.

I fully agree with and thus concur in the majority opinion. As 

a matter of common law, because Chauncy’s mother, Nelegene 

Morgan, died before the testator, her gift under the 1998 Will 

lapsed. See Tubbs v. Teeple, 388 So. 2d 239, 239 (Fla. 2d DCA 

1980) (“When a legatee under a will predeceases the benefactor, 

the gift lapses.” (citing Drafts v. Drafts, 114 So. 2d 473, 474 (Fla. 

1st DCA 1959))). 

Florida does have an “antilapse” statute—codified at section 

732.603, Florida Statutes—that, to some extent, ameliorates the 

effect of a gift lapsing under the common law; but the statute 

provides no relief here to Chauncy. Under the version of section 

732.603 in effect when McNairy executed his 1998 Will—or, for 

that matter, the current version of the statute—a gift would not 

lapse if the predeceased devisee was either the grandparent or the 

descendant of a grandparent of the testator. In such 

circumstances, and in the absence of a contrary intent appearing 

in the will, the descendants of the predeceased devisee would 

receive or inherit per stirpes in place of the deceased devisee. See 

§ 732.603(1), Fla. Stat. (1998).

Morgan, however, is neither the grandparent nor a 

descendant of a grandparent of the testator. And with there being 

nothing in the 1998 Will to indicate that McNairy intended that 

his bequest to Morgan would not lapse or would otherwise pass to 

Morgan’s descendants, such as Chauncy, if Morgan predeceased 

him, the probate court correctly dismissed the petition with 

prejudice.