Wednesday, September 2, 2009

Third District Reverses Unauthorized Advisory Opinion

In McMullen v. Bennis (3D08-2849), the Third District reversed the trial court's order as an unauthorized advisory opinion.
We also find the proceeding, as initiated by the parties, an unauthorized request for an advisory opinion. Although the Florida Supreme Court is expressly authorized to issue advisory opinions pursuant to several provisions of the Florida Constitution, see Art. IV, § 10, Fla. Const. (pertaining to citizen’s initiatives); Art. IV, § 1(c), Fla. Const. (pertaining to opinions requested by the governor); Art. V, § 2(a), Fla. Const. (pertaining to questions related to military law), and district courts of appeal are so empowered by the latter, trial courts have no authority to issue advisory opinions to parties. See Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994) (“[P]arties must not be requesting an advisory opinion, except in those rare instances in which advisory opinions are authorized by the Constitution.”) (internal citation omitted); see also Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) (quoting May v. Holley, 59 So. 2d 636, 639 (Fla. 1952)) (stating that petitions for declaratory relief “should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts”).
In this case, the validity of the decedent’s will is unresolved. Whether Bennis is a virtually adopted daughter becomes material to the probate proceeding only if the decedent’s will is invalid. Consideration of the validity of the decedent’s will necessarily must be the court’s first order of business. If the court determines the will is invalid, Bennis then may proceed as she deems appropriate.


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