DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KAREN WINSLOW,

Appellant,

v.

MALLORY N. DECK, as Personal Representative of

the Estate of MICHAEL S. DECK,

Appellee.

No. 4D16-4312

[August 2, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Charles M. Greene, Judge; L.T. Case Nos. PRC16-2237 

and PRC15-0002207.

Brandan J. Pratt and Jennifer L. Fox of Huth, Pratt & Milhauser, 

Boca Raton, for appellant.

Rohan Kelley of The Kelley Law Firm, PL, Fort Lauderdale, for 

appellee.

KLINGENSMITH, J.

Appellant, Karen Winslow, appeals the trial court’s order dismissing 

her counterpetition for administration with prejudice for failure to file a 

pleading satisfying the statutory requirements set forth in section 

733.212(3), Florida Statutes (2013), within the applicable statute of 

limitations. Upon review of the pleadings filed by appellant, we find 

appellant’s petition was not time-barred, and that the court erred by not 

affording her the opportunity to amend her petition.

The decedent drafted two wills that are at issue in this case. The first 

will was drafted in January 1991, leaving his entire estate to his two 

adult children. Several years later, the decedent befriended appellant 

and they began living together. Thereafter, the decedent drafted a 

second will in November 2014 containing language purporting to revoke 

all prior wills and leaving his entire estate to appellant. On May 7, 2015, 

shortly after the decedent passed away, his daughter Mallory 
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successfully petitioned the court to admit the first will to probate and to 

appoint her as the personal representative of the estate.

On May 27, 2015, appellant filed the second will. Two days later, she 

filed four additional documents with the court: 1) an emergency petition 

to revoke letters of administration; 2) a counterpetition for administration 

with the second will attached thereto; 3) an objection to Mallory’s petition 

and an objection to her appointment as personal representative; and 4) a 

declaration that the probate proceeding was adversary. Less than a 

month later, the court entered an order denying appellant’s emergency 

petition without prejudice and upholding the letters of administration 

issued for the first will.

More than a year later, Mallory moved to dismiss appellant’s 

counterpetition with prejudice, arguing that appellant lacked standing to 

contest the first will. In the motion, Mallory asserted that after receiving 

notice that the decedent’s estate would be administered in accordance 

with the first will, appellant had three months to object to the probate of 

the first will. Mallory alleged that although appellant immediately filed 

an emergency petition and counterpetition, appellant failed to file any 

pleading that specifically requested the first will be revoked. Appellant 

responded by arguing that the court should deny the motion to dismiss, 

or alternatively, grant the motion but with leave to amend the 

counterpetition.

The court ultimately entered a final order dismissing the 

counterpetition with prejudice, ruling that neither the emergency petition 

nor the counterpetition satisfied the statutory requirements of section 

733.212(3) for failure to adequately request relief. This appeal followed.

“A trial court’s order of dismissal is reviewed de novo.” Pasquale v. 

Loving, 82 So. 3d 1205, 1207 (Fla. 4th DCA 2012). “In determining 

whether to dismiss a complaint for lack of standing, we must confine our 

review to the four corners of the complaint, draw all inferences in favor of 

the pleader, and accept all well-pled allegations in the complaint as true.” 

Gordon v. Kleinman, 120 So. 3d 120, 121 (Fla. 4th DCA 2013) (quoting 

Wheeler v. Powers, 972 So. 2d 285, 288 (Fla. 5th DCA 2008)). “[E]xhibits 

attached to a complaint ‘are encompassed within the four corners of the 

complaint and must be considered therewith’ on a motion to dismiss.” 

Chandler v. City Of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 

2014) (quoting Abele v. Sawyer, 750 So. 2d 70, 74 (Fla. 4th DCA 1999)); 

see also Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall 

be considered a part thereof for all purposes.”).
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Pursuant to section 733.212(3), interested parties are barred from 

requesting the court to revoke the probate of a will if they fail to object to 

the validity of the will within three months of receiving notice:

Any interested person on whom a copy of the notice of 

administration is served must object to the validity of the 

will, the qualifications of the personal representative, 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.

§ 733.212(3), Fla. Stat. (2013). Section 733.208, Florida Statutes (2002), 

provides that after discovering a later will, “any interested person may 

petition to revoke the probate of the earlier will or to probate the later will 

or codicil.” 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. (2013).

Florida Probate Rule 5.020(a) provides that “[a]ll technical forms of 

pleadings are abolished. No defect of form impairs substantial rights, 

and no defect in the statement of jurisdictional facts actually existing 

renders any proceeding void.” Moreover, after an interested person 

petitions the court to probate a later will or requests to revoke an earlier 

will, the proceedings are declared adversarial and the Florida Rules of 

Civil Procedure govern the proceedings. See Fla. Prob. R. 5.025(d)(2).

As a general rule, trial courts should not prevent a petitioner from

challenging a will because of a technical defect in the petitioner’s 

pleading without allowing for a reasonable opportunity to amend. See 

Pasquale, 82 So. 3d at 1208; see also Feather v. Sanko’s Estate, 390 So. 

2d 746, 747 (Fla. 5th DCA 1980) (“Although Feather’s pleading might not 

have been sufficient to withstand a motion to strike, she should have 

been given a reasonable chance to amend or file further pleadings, rather 

than suffer what amounts to a default judgment against her claim.”). 

The law is clear that trial courts must liberally construe court rules to 

allow parties to freely amend their pleadings in the interests of justice: 

Florida Rule of Civil Procedure 1.190(a), which governs 

amendments to pleadings, “reflect[s] a clear policy that, 

absent exceptional circumstances, requests for leave to 

amend pleadings should be granted.” Thompson v. Jared 
4

Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004). “A trial 

court’s refusal to allow amendment . . . generally constitutes 

an abuse of discretion ‘unless the privilege has been abused, 

there is prejudice to the opposing party, or amendment 

would be futile.’” PNC Bank, N.A. v. Progressive Emp’r Servs. 

II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011) (quoting Fields v. 

Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007)).

Fed. Home Loan Mortg. Corp. v. Beekman, 174 So. 3d 472, 474 n.1 (Fla. 

4th DCA 2015).

Even though neither the emergency petition nor the counterpetition 

were models of clarity, they were nevertheless sufficient to withstand a 

motion to dismiss. In the emergency petition, appellant asserted that the 

first will was not the last will of the decedent, that she filed a 

counterpetition to admit the second will to probate, and that issuing 

letters of administration for the first will was improper since the second 

will revoked all prior wills. In the counterpetition, appellant attached the 

second will, claimed that it was properly executed, and requested an 

independent personal representative be appointed. Thus, as it is clear 

from the allegations contained in these filings that appellant sought to 

revoke the probate of the first will and admit the second will, appellant 

satisfied both sections 733.208 and 733.212(3) despite technically failing 

to properly request relief. See Fla. Prob. R. 5.020(a).

Further, by finding that appellant’s pleadings were insufficient under 

section 733.212(3), the court should have granted the motion to dismiss 

but with leave to amend the counterpetition to incorporate a proper 

request for relief. See Fla. R. Civ. P. 1.190(a); Samuels v. King Motor Co. 

of Fort Lauderdale, 782 So. 2d 489, 501 (Fla. 4th DCA 2001). 

Nothing in the record indicates that appellant abused the privilege to 

amend, there would have been prejudice to Mallory by permitting leave to 

amend, or the amendment would have been futile. See Beekman, 174 

So. 3d at 474 n.1. Given that appellant made her first and only request 

for leave to amend the counterpetition shortly after Mallory filed her 

motion to dismiss, clearly appellant did not abuse the privilege to amend. 

Granting the opportunity to amend would not have prejudiced Mallory 

because she was aware of the gravamen of appellant’s two petitions. 

Indeed, for over a year after the counterpetition was filed, Mallory 

participated in discovery, conducted depositions, and even requested 

that a handwriting expert inspect the second will for forgery. Allowing 

appellant to amend her counterpetition to include a proper request for 

relief, therefore, would have only confirmed what Mallory already knew —
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that appellant was hoping to revoke the probate for the first will, and 

instead admit the second will. Finally, appellant’s amendment to her 

counterpetition would not have not been futile. As the sole beneficiary 

named in the second will, appellant was unquestionably an interested 

person in the decedent’s estate who had a right to challenge the probate 

administration of the decedent’s first will. See Feather, 390 So. 2d at 

747.

Accordingly, we reverse the trial court’s dismissal of appellant’s 

counterpetition, and remand with instructions for the court to grant 

appellant’s request for leave to amend her counterpetition to incorporate 

a proper request for relief. Because appellant filed the original 

counterpetition within three months after receiving notice of the 

administration of the decedent’s estate, she is not time-barred by section 

733.212(3) since her amended counterpetition will relate back to the date 

she filed the original. See Fla. R. Civ. P. 1.190(c) (“When the claim or 

defense asserted in the amended pleading arose out of the conduct, 

transaction, or occurrence set forth or attempted to be set forth in the 

original pleading, the amendment shall relate back to the date of the 

original pleading.”).

Reversed and Remanded. 

CIKLIN, J., and METZGER, ELIZABETH A., Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.