A will can be challenged by an attorney in a Florida probate proceeding on a number of grounds.
- Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.
- Lack of Capacity. Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.
- Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker. The Estate of Carpenter is the seminal undue influence case for Florida will contest litigation.
- Insane Delusion. Insane delusion occurs when the testator, against all evidence to the contrary, believes something that is not true, and creates or changes an estate planning document (will or trust) based on the insane delusion. For example, the testator could believe that she has been abandoned by a child and disinherits the child. In reality, the child visits his mother every day. The will could be set aside as an insane delusion.
- Fraud. Estate fraud occurs when a beneficiary of a will causes the testator to make or change a will based on misrepresentations. For example, an unscrupulous child could tell a parent lies about a sibling to cause that sibling to be disinherited. Examples of such fraud could be that the sibling has been convicted of a crime, has engaged in illegal or immoral acts, or has said derrogatory things about the testator. If the will has been prepared based on the fraud, the will can be set aside in a successful will contest.
The time for making a will contest in Florida is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative, or 20 days in the event that Formal Notice of the probate proceeding is received before the will has been admitted to probate. Therefore, prompt action is required to bring your lost inheritance back to life.
Not just a will can be challenged under these grounds. A trust can be challenged under the same grounds, as well as a real estate deed or a beneficiary designation on a financial account. There are many situations where the undue influencer will trick or persuade a weakened person to sign over valuable real estate, a bank account, or other property directly to the influencer, in the hope that they will have left the scene before the wrongdoing can be discovered. Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass.
If the wrongdoing is discovered prior to the victim's passing, a common way for a loved one to start to clean up the situation will be to create a guardianship, which will allow the guardian to use the court's jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding.
The firm handles its Florida will contest cases on an hourly basis, and in some situations will take a will contest case on a contingency fee basis or other alternative billing arrangement. Please contact one of our Florida probate attorneys to learn more.
Frequently asked questions about Florida will contests.
Also see the Clark Skatoff handbook for will contests.
In some cases, a claim for tortious interference with expectancy should be filed instead of the will contest or in addition to the will contest.
If you believe that you or a loved one may have been improperly cut out of a will or otherwise deprived of a rightful inheritance, or you have questions about a will contest, trust or estate, please call the law firm at 561) 842-4868 or toll free at 888-752-8633 for a consultation. The initial call is free. Written by Jeffrey Skatoff.