Florida Will Contest Attorneys - Probate Litigation Law Firm
Tampa Bay Will Dispute Lawyers
In Florida, a dispute over the validity of a loved one’s will is difficult process and can generate many causes of action under Florida law. PersanteZuroweste is a law firm that handles various will contests and estate disputes in Florida. Our attorneys are conveniently located near the Clearwater, St. Petersburg, and Tampa Bay area. Below is a brief overview on will contests in Florida.
Whether you want to contest an estate plan or need defense in upholding an estate plan, please give us a call for a free consultation at (727) 796-7666.
What is a will contest?
A will contest is exactly what it sounds like —an action brought to challenge the validity of a will. A will contest is usually brought to accomplish one of two goals. A friend or family member may want to invalidate a will so that all property will pass by operation of law (this is known as intestate succession). Or, a will contest be brought invalidate later will or amendment so that the property passes according to a prior valid will.
It is important to note, that under Florida law, a clamant in a probate action has only ninety (90) days to obtain information, hire an attorney, and file a suit contesting the will once the will has been admitted to probate.
Who can contest a will in Florida?
Unlike most civil cases, adversarial probate proceedings do not permit the waiver of standing as a defense. Thus, a person must have standing to contest a will.
Any interested person has standing contest a will.
“Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent's estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor's estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings. Fla. Stat. § 731.201 (2014).
Can I still sue if a will threatens to disinherit me for contesting my inheritance?
Absolutely. In Florida, any clause in a will that seeks to penalize an interested person for contesting the will or instituting other probate proceedings called an in terrorem clause, and is unenforceable.
What are the common ways to contest a will?
There are many different ways to contest a will in Florida. A will may be challenged on technical grounds because the will was not executed with the proper formalities. Additionally, a will may be invalidated on statutory grounds such as incompetency, undue influence, fraud, insane delusion, or duress.
In Florida, a will must be executed with the proper statutory formalities. Attacking a will on technical grounds is usually simpler than proving that the testator lacked capacity or was unduly pressured into making the will. Although the technical grounds for contesting a will involve complex considerations, here is a brief explanation of the basics.
Age Requirement: The Testator must be at least 18 years old (or an emancipated minor) and of sound mind. If the testator meets these conditions, they may execute a will.
The will must be signed by the testator (or at the testator’s direction) in the presence of two witnesses,
The witnesses must sign the will in the presence of each other and the testator.
It is common for a will to include what is called a “self-proving affidavit.” This is a document that is signed under oath, and is prima facie proof that the will was executed with the proper formalities.
A testator must be of “sound mind” at the time the will is executed. This means that the testator must be able to understand the nature and extent of their property, the relationship of those who would be the natural objects of the testator’s bounty, and the practical effect of the will.
A will contest based on the Testator’s incompetence is fact intensive and cannot be based solely on age or failing memory. Even if a testator suffers from a mental condition, a will may be validly executed during a “lucid interval.” a person challenging the will has the burden of proving the testator lacked capacity because there is a presumption that the testator had the requisite capacity at the time he or she signed the will.
Of these four potential causes of action, undue influence is the most common.
A will may be successfully invalidated if the testator was unduly influenced into executing a will, or portions of the will. Undue influence occurs when a bad actor exerts so much control through pressure and persuasion over the testator such that he or she loses the ability to act voluntarily.
In Florida, there is a presumption of undue influence when a person who substantially benefits from the will possessed a confidential relationship with the decedent and was active in procuring the will.
Some of the factors used to prove a confidential relationship in this situation were outlined by the Supreme Court of Florida in In re Carpenter’s Estate:
(a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.
In re Carpenter's Estate, 253 So. 2d 697, 702 (Fla. 1971)
Contesting a will on the basis of fraud requires (1) a false representation of material fact, (2) knowledge by the “defrauder” that the representations are false, (3) intent that the representation would be acted on, and (4) an injury.
Although less common, a will may be contested on the basis of duress if the bad actor substantially threatens or uses force to make the testator alter his or her estate plan.
On rare occasions, a will may be contested if the testator has an insane delusion. This is defined as a fixed false belief that has no basis in fact. A testator that has a mistaken conclusion and refuses to accept substantial evidence of their mistake may not have the requisite capacity to execute a will.
If you need the assistance of an attorney in the Tampa Bay Area regarding an estate matter, please contact PersanteZuroweste at (727) 796-7666.