Florida Probate Litigation


A Florida Will Contest is a formal objection against the validity of a will contesting it does not reflect the intent of the testator (the person who made the will). A will may be challenged, disputed or contested in its entirety or only in part.

Pursuant to Florida Law and explicitly in the Florida statutes a provision in a will seeking to prevent a Florida Will Contest is not enforceable. Florida Statute 732.517 states this. This is done as a matter of public policy. Florida Law also provides that a Florida Will Contest cannot be brought prior to a person dying. This also makes sense as a will has no legal effect until somebody has died and the will can be admitting to probate court.

Two primary reasons for a Florida Will Contest or Florida Probate Litigation are lack of mental capacity and undue influence. As long as a person has mental capacity also known as testamentary capacity – generally knowing what they are doing and who their natural heirs are and not being coerced or pressured into making certain provisions the testator or person making the will can provide for anybody they want for any reason they want.

Described a little further testamentary capacity for a Florida will is the ability to understand generally the nature and extent of one?s property, the relationship of those who would be the natural objects of the testator?s bounty, and the practical effect of a will. Testementary Capacity is one of the more frequent challenges for Florida Wills and typically hapens when a testator was very elderly, sick, and/or heavily medicated. Capacity is judged at the time of the execution of the will or testamentary trust. It is possible someone may typically lack capacity but have a lucid moment where they are with it and have testamentary capacity.

Undue Influence means that the testators mind was so controlled by persuasion, pressure, or coercion by the actions of another that he or she did was unable to act voluntarily but the will became the document of the person provided the influence and to the point it is no longer considered a matter of free will and the testators desires it is called undue influence and not permited. At the time of execution of the document if testator does not have mental capacity, is subject to undue influence or the document is forged it will not be valid Florida will law says.

Florida Will Contest Case explaining the Carpenter precedent and impact of revised presumption in 733.107

A presumption of undue influence occurs when it is demonstrated by the person contesting the will that the individual alleged to have unduly influenced 1 occupied a confidential relationship with the testator; 2 was a substantial beneficiary under the will; and 3 was active in procuring the will. Active procurement can be shown regarding seeking a will when various factors are proven to have occured. Some facts mentioned in the Carpenter case which the Florida Supreme Court decided in 1971 included:

  1. The presence of the beneficiary at the execution of the will.
  2. The presence of the beneficiary on during which times the testator expressed the desire to make a will.
  3. The beneficiary of the will recommending an attorney to draw the will.
  4. The beneficiary having knowledge of the contents of the will prior to the testators execution of it.
  5. Instructions regarding preparation of the will by the beneficiary to the attorney preparing the will.
  6. The Beneficiary obtaining witnesses for the execution of the will.
  7. The maintaining the will by the beneficiary after the execution of the will.

If multiple of these situations are demonstrated to have occured the presumption that the will was procured by undue influence may arise. When the presumption arises the beneficiary is required to then show a reasonable explanation for their active role in procuring the will. If the beneficiary cannot provide a reasonable explanation of his or her active role in the procurement of the will, this alone is sufficient to find undue influence. If the beneficiary can come forward with a reasonable explanation, then the person contesting the will must go forward with evidence that the will was procured through undue influence.

Florida Undue Influence Cases and Lack of Testementary Capacity Cases are often inter related and often have the other mentioned in the complaint although they do have their specific characteristics and sometimes one will have nothing to do with the case while the other may be present.

For both of the in evaluating whether to proceed with a Florida Will Contest or Florida Probate Litigation Case timelines can be important facts. How long before the decedents passing was the alleged lack of capacity or undue influence. If it occured a couple weeks prior to the death while on substantial medications, being cared for and dependent on the person aleged to be involved in undue influence, while the testator does not remember the names of the family members and the supposed influencer calls an attorney to a hospital room or the bed of the testator those facts would obviously look far stronger than something happening several years prior to the passing. Also other facts are of importance as well if there was a prior will what impact do the changes have on the will and what are the relationships of those involved. A hired non relative caretaker who suddenly gets a million dollars from an estate while the children and others are primarily cut out will of course attract more scrutiny than the natural heirs being provided for.

In order for someone to pursue a Florida Probate Litigation case or a Florida Will Contest though they must have a legally valid claim to do so and cannot merely say that it was unfair that they did not inherit what they feel they should have.

With the exception of when the decedent holds property in their sole name but has a primary residence in Florida declared as their homestead a minor child who survived them or a spouse who survived them and if no minor children and it was not validly devised to the spouse then to spouse for life and the homestead owners children would have a remainder interest. Other than that only an elective share are typically requiring a person to leave property for another. Waiver of Spousal Rights are allowed and addressed by 732.702. When not waived the Florida Elective Share Statute would apply. Click on Florida Elective Share statute to read the details but basically absent a pre or post nuptial agreement a spouse is entitled to receive at least 30% of the value of the augmented estate. The law used to only include property in the probate estate but now applies to most assets whether in the probate estate or not.

In order for the will to control the assets of the estate the decedent and be worth challenging there would need to be assets in the sole name of the decedent and not pass by transfer on death designation, by contract, to a named beneficiary or pass by right of survivorship. Florida Probate related litigation could also be sought to challenge other types of transfers such as inter vivos transfers or abuse of power of attorney if there was undue influence, theft, breach of fiduciary duty or other problems but the will only controls the property in the decedents sole name at the time of death. Thus a challenge would first need to be made that the other transfers should not have been made and should still have been in the decedents estate prior to the will applying to them.

Florida Will Execution Statutes provide that in order for a will to be validly executed it must be signed at the end by a testator who is at least 18 years of age or an emancipated minor, signed by 2 witnesses who are in the conscious presence of the testator and each other. They must be there when each other signs and not come after the fact. A will without two witness signatures is totally void and cannot be admitted to probate. A will should also be made self proved so a witness will not need to be found and extra steps taken in the estate settlement process but if the document was not notarized it would not be void as a result.

A less common reason for a Florida will contest is forgery although obviously if the will sought to be admitted to probate was not the signature of the testator or signed on their behalf and at their direction as provided by Florida law then it will be invalid. A handwriting specialist and other evidence can be shown to prove a will was forged and not the signature of the testator.

If the will submitted to Florida Probate is not the most recent will then the other will should be provided and would take precedent either in the event of any conflict or entirely if it revokes all prior wills the testator had made.

Although Florida allows will contests the person who hires a Probate Litigation Attorney to dispute the will and contest their share of the estate much have legal standing to do so. If they were a beneficiary who would have inherited but for a change in the will which they claim was the product of undue influence or lack of capacity for example they would have standing. They can also contest the will and have standing if they have evidence to show those grounds may exist or another legally valid claim is made but there had been no prior will and they would inherit through the Florida intestate succession laws.

It is important for people to call a Florida Probate Estate Attorney and understand how Florida Probate Law works and whether they have a case that should be pursued since the time frames can be relatively tight.

A person involved in a Florida Will Contest or Florida Probate Litigation matter typically has either 90 days after receiving the notice of administration from the personal representative handling the Florida probate matter or if they receive formal notice of the probate in advance of admitting the will to probate the time period for contesting the will can be cut to 20 days from the date of service. If a person has a legally valid claim and has been short changed in what they were intended or should be legally entitled to receive than in order to insure justice prevails and they protect their right to the inheritance it is important that they hire an experienced Florida Probate Litigation Attorney. A Florida Will Contest attorney can see that the property pass as it should pursuant to Florida law based on the facts of the case.

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