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The hearsay rule does not bar a person from suing a sibling for destroying a family member’s will even when the only evidence is the word of a relative who died after she testified, a Florida appeals court has ruled. The decision by the state’s 3rd District Court of Appeal reverses summary judgment granted in Miami-Dade County Circuit Court to Louis Hatten, the brother of Louise Hatten, whose other siblings claim they saw him discard papers that likely included Louise’s will after she died. The siblings claim Louis destroyed the will because he discovered that Louise had disinherited him. Prior to Louise Hatten’s death in August 2001, one sister said Louise showed her the will, which disinherited two brothers and a nephew who owed her money, and left her property to four of her seven siblings. Another sister claimed Louise told her about the contents of her will three months before she died. Following Louise’s death, Louis Hatten filed a successful motion to become the representative of her estate. Because Louise’s will could not be found, her $700,000 estate was divided equally among her seven siblings. But three of the four siblings who suspected that Louise’s missing will left the estate solely to them — Antoinette Tartaglia, Jeanette Kidd and Anthony Hatten — sued Louis Hatten in Miami-Dade County Circuit Court for tortious interference with a testamentary expectancy. They sought recovery of the share of the estate he was inheriting. Circuit Judge Arthur Rothenberg dismissed the suit on summary judgment. He said the siblings’ testimony about what Louise told them about her will was inadmissible hearsay. Judge Rothenberg also based his dismissal on Florida’s Dead Man’s Statute, which prohibits parties in probate disputes from testifying about the oral conversations they had with people before they died. But the 3rd DCA panel reversed Rothenberg last week in In Re: Estate of Louise Hatten, saying there were factual issues to be resolved at trial. The court said Florida law provides an exception to the hearsay rule in probate cases involving the execution, revocation or terms of a will. “The hearsay rule does not bar the testimony of the plaintiffs regarding the fact that the decedent had executed a will and the contents of the will,” Judge Gerald Cope wrote. Judges Mario Goderich and Melvia Green concurred. According to the 3rd DCA, the Dead Man’s Statute does not apply because the siblings were suing their brother Louis individually rather than as the personal representative of Louise’s estate, the 3rd DCA said. The Florida Supreme Court has ruled that the Dead Man’s Statute only applies to actions involving parties sued in their capacity as personal representatives, the panel noted. Therefore, the sisters’ testimony regarding Louise’s wishes before she died is admissible evidence, the panel said. The suit was reinstated and remanded to the lower court for trial.

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