Heisig v. Heisig

District Court of Appeal of Florida

Heisig v. Heisig

620 So. 2d 1106, 1993 Fla. App. LEXIS 6916, 1993 WL 233517

CourtDistrict Court of Appeal of Florida

DecidedJune 30, 1993

DocketNo. 92-1848

StatusPublished

Cited by1 cases

This text of 620 So. 2d 1106 (Heisig v. Heisig) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heisig v. Heisig, 620 So. 2d 1106, 1993 Fla. App. LEXIS 6916, 1993 WL 233517 (Fla. Ct. App. 1993).

Pincite

Opinion

FARMER, Judge.

The proponent of a lost will appeals a summary judgment and a final order directing payment of claims, expenses and distribution of estate assets. We reverse both orders.

The trial judge found as a matter of law that the proponent had failed to present sufficient evidence to overcome a presumption of revocation that arises when it is established that the testatrix was in possession of the will before her death and the will cannot later be located, citing In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA1977). We stress that the trial court’s determination was made after a hearing on motions for summary judgment and not after a trial.

We do not understand how the trial judge could have reached the conclusion he did without weighing the available evidence against the presumption. Summary judgment hearings are ordinarily not for weighing evidence. The proponent has demonstrated that genuine issues of material fact do exist. Summary judgment is therefore improper. Moore v. Morris, 475 So.2d 666 (Fla.1985). We express no opinion as to whether the evidence produced by the proponent in the record for the summary judg[1107]*1107ment hearing would be sufficient after a trial to overcome the presumption. *

REVERSED.

HERSEY, J., and DOWNEY, JAMES C., Senior Judge, concur.

Free access — add to your briefcase to read the full text and ask questions with AI

FARMER, Judge.

The proponent of a lost will appeals a summary judgment and a final order directing payment of claims, expenses and distribution of estate assets. We reverse both orders.

The trial judge found as a matter of law that the proponent had failed to present sufficient evidence to overcome a presumption of revocation that arises when it is established that the testatrix was in possession of the will before her death and the will cannot later be located, citing In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA1977). We stress that the trial court’s determination was made after a hearing on motions for summary judgment and not after a trial.

We do not understand how the trial judge could have reached the conclusion he did without weighing the available evidence against the presumption. Summary judgment hearings are ordinarily not for weighing evidence. The proponent has demonstrated that genuine issues of material fact do exist. Summary judgment is therefore improper. Moore v. Morris, 475 So.2d 666 (Fla.1985). We express no opinion as to whether the evidence produced by the proponent in the record for the summary judg[1107]*1107ment hearing would be sufficient after a trial to overcome the presumption. *

REVERSED.

HERSEY, J., and DOWNEY, JAMES C., Senior Judge, concur.

Cite This Page — Counsel Stack

Bluebook (online)

620 So. 2d 1106, 1993 Fla. App. LEXIS 6916, 1993 WL 233517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heisig-v-heisig-fladistctapp-1993.

Opinion

Related

Cite This Page — Counsel Stack