## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

Case No. 5 D 2 3

- 608
LT Case No. 2018

- 11957

- PRDL

_____________________________

S TEVEN C HAUNCY

,

Appellant,

v.

D ENNIS L EE G ORDEN A ND T HE
E STATE O F A DDISON W OOLLEN
M C N AIRY

,

Appellee.

_____________________________

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

H ARRIS

, J.

Addison McNair y passed away on August 31, 2018. A week later, Appellant

, Steven Chauncy

, filed a petition for
administration of the decedent’s est ate , seeking to probate a will McNairy purportedly executed in 2007 (the “2007 Will”) . Shortly2 thereafter, Appellee

, Dennis Gorden

, filed an adversarial petition seeking to probate a will executed by McNair y in 2018 (the “2018 Will”) . Each side filed chall enges and objections to the other’s will. Following an evidentiary hearing, the court agreed with Gorden’s position and found the 2007 W ill to be invalid and admitted the

2018 W ill 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 w ill ( the “1998 Will”)

. Chauncy attached a copy of the 1998 W ill 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 W ill. Again, the trial court agreed with Gorden, finding that the use of the word “survivor” in the

1998 W ill 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 cr eate 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. Chaunc y was not an heir or in any other way
related to the dec edent

.3 975 (Fla. 5th DCA 2016). Throughout t his 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, sh ort 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 20 18 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. Contre ras , 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 Nel egene

. T he 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 term4 ‘survivor’ will generally “exclude representatives so that the last
survivor of a class will take the wh ole 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
stand ing, 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)

.

A FFIRMED

.

B OATWRIGHT

, J., concur s

. L AMBERT

, J., concurs with opinion.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________5 Case No. 5 D 2 3

- 608
LT Case No. 2018

- 11957

- PRDL

L AMBERT

, 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, a meliorates 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.