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Serving Flagler, Putnam, St. Johns, and Volusia Counties



Re: Adversary Case Style on Probate Pleadings

Ref: PB-2009-022-SC

WHEREAS, the probate and guardianship division of the circuit court must take all appropriate steps to protect the rights of persons interested in adversary probate or guardianship cases filed pursuant to chapters 731, 732, 733, 734, 735, and 744, Florida Statutes (2009), and the Florida Probate Rules, and

WHEREAS, Rule 5.025, Florida Probate Rules, declares that the following proceedings shall be adversary, unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later discovered will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will, proceedings declared to be adversary by an interested person, and proceedings determined to be adversary by the court; and

WHEREAS, the adversary case style, described in Fla. Prob. R. 5.025(d), is required on all pleadings named in Fla. Prob. R. 5.025(a), (b), and (c), and

WHEREAS, when adversary pleadings are filed, the court follows adversary rules of procedure, which differ from non-adversary rules of procedure; the presiding judge must apply strict rules of ethics to communications with counsel in such proceedings; and the Committee Notes to Fla. Prob. R. 5.025 recognize that the adversary case style is necessary and useful to facilitate the clerk’s and the court’s ability to segregate such adversary proceedings from the main court file;

NOW THEREFORE, I, J. DAVID WALSH, Chief Judge of the Seventh Judicial Circuit of Florida, hereby find that pleadings declared to be adversary by Rule 5.025, Florida Probate Rules, that do not contain the adversary case style described in Fla. Prob. R. 5.025(d) are not authorized by law and shall be returned by the clerk of court to the pleader, or the pleader’s attorney, un-filed. This applies to all pleadings in adversary proceedings, whether initial or subsequent.

IT IS FURTHER ORDERED that nothing in this order limits the authority of the court to declare proceedings to be non-adversary pursuant to Fla. Prob. R. 5.025(a).

TO BE RECORDED in Flagler, Putnam, St. Johns, and Volusia Counties, Florida.

DONE AND ORDERED in Daytona Beach, Volusia County, Florida this 22nd day of May 2009.

/s/ J. David Walsh
J. David Walsh
Chief Judge

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Serving Flagler, Putnam, St. Johns and Volusia Counties