Probate, trust, guardianship and inheritance litigation
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Will Contest Guide for Florida

By:  Jeffrey Skatoff, Esq.

A will can be contested in Florida on the grounds of undue influence, lack of capacity, fraud, duress, lack of testamentary formalities, and insane delusion.

Grounds For a Florida Will Contest

Lack of Proper Formalities

Proper execution of a will under Florida law 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.  Critically, for a will to be validly executed, the decedent must sign or acknowledge the will in the presence of the two attesting witnesses, and the two attesting witnesses must sign the will in the presence of each other.  Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005).  Often a quick deposition of the persons present at the execution of the will can establish that the requisite formalities were, or were not followed.

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.  The Florida Supreme Court has stated in In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953):

The making of a will does not depend upon a sound body but upon a sound mind.  By “sound mind” is meant the ability of the testator ‘to mentally understand in a general way the nature and extend of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of practical effect of the will as executed

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.


Probate 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 derogatory 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.


Challenging a Will in Florida for 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.

Active Procurement, Confidential Relationship, Substantial Beneficiary, and the Shifting Burden of Proof

The person trying to challenge the will needs to show that the alleged undue influencer engaged in active procurement of the will.  The alleged undue influencer also must be shown to have benefitted from the change in the estate plan.  It is also helpful to show that the alleged undue influencer had a confidential relationship with the decedent, meaning one of trust and confidence.  If these elements of undue influence can be established, Florida law implements a shift in the burden of proof.

The shifting burden of proof is explained in RBC Ministries v. Tompkins, 974 So. 2d 569 (2nd DCA 2008):

If a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.

The rebuttable “presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof.” § 733.107(2), Fla. Stat. (2005). Such a presumption “affecting the burden of proof”—as distinct from a presumption affecting the burden of producing evidence—”imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” § 90.302(2), Fla. Stat. (2005). Accordingly, once a will contestant establishes the existence of the basis for the rebuttable presumption of undue influence, the burden of proof shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence.

Whether the challenger to the will can prove active procurement is normally the litigated part of a case.  The Florida Supreme Court in Estate of Carpenter , 253 So.2d 697 (Fla. 1971) sets forth a list of active procurement factors to establish whether there is undue influence.

The Carpenter case lists a set of non-exclusive factors to determine whether a beneficiary has actively procured a will.

Carpenter Factors:

(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.

The Carpenter factors are not an exhaustive list of the factors that can be used to establish undue influence – they are just the types of objective factors that can be used to determine whether there was active procurement.

The reasoning from the RBC Ministries v. Tompkins case explains how undue influence is weighed by the Florida courts:

Will contestants are not “required to prove all the listed criteria to show active procurement.” Id. Indeed, “it will be the rare case in which all the criteria will be present.” Id.
On the active procurement issue, the record before the trial court shows the following facts: Tompkins was present at the execution of the will. She was present when the decedent expressed a desire to make a will. She did not recommend an attorney to draft the will, but she herself drafted the will on her home computer. Because she drafted the will, she was aware of the contents of the will before it was executed. Tompkins secured the witnesses to the will, but the witnesses were neutral parties. Finally, Tompkins had possession of the will after its execution.

Accordingly, the circumstances identified in Carpenter’s criteria (a), (b), (d), (f), and (g) are all present here. Circumstances similar to–but, in fact, more egregious than–the circumstances identified in criteria (c) and (e) are also present here. In view of these facts, there is no basis for concluding that Tompkins established beyond dispute that she was not active in procuring the contested will. Given Tompkins’ conceded status as a substantial beneficiary under the will, her admitted confidential relationship with the decedent, and her failure to show beyond dispute that she was not active in procuring the will, Tompkins did not establish that the presumption of undue influence had not arisen. See id. at 702 (holding that “at least four of the factors” regarding active procurement were “sufficient to raise the presumption of undue influence” where the beneficiary was a substantial beneficiary who had a confidential relationship with the decedent).

Given the RBC Ministries positive reference to “at least four of the factors” from the Carpenter case, litigants should strive to identify at least four such active procurement factors.

Frequently Asked Questions for a Florida Will Contest

Will the Court consider factors beyond those identified in the Carpenter case?

Yes.  A recent Florida undue influence case, Swiss v. Flanagan, 329 So.3d 199 (3rd DCA 2021) makes clear that many factors can be considered in determining whether or not there has been undue influence, not just those factors set forth in the Carpenter case.

Further, as has been observed by multiple courts, the Carpenter criteria are not exclusive. Instead, courts “may expect supplementation by other relevant considerations appearing in subsequent cases.” Id.; see also In re Est. of Winslow v. Patterson, 147 So. 2d 613, 616 (Fla. 2d DCA 1962) (considering the insulation of the testator from her relatives and efforts to prejudice her against them); Newman v. Smith, 77 Fla. 633, 82 So. 236, 246 (1918) (considering the reasonableness of the will provisions). In this regard, courts have routinely considered the mental and physical health inequalities between the testator and beneficiary at the time the will is executed. See In re Estate of Reid, 138 So. 2d 342, 349 (Fla. 3d DCA 1962), overruled in part on other grounds, Carpenter, 253 So. 2d 697 (Fla. 1971) ; Cripe v. Atl. First Nat’l Bank of Daytona Beach, 422 So. 2d 820, 824 (Fla. 1982) (“Where there is such inequality of mental strength, active procurement can be shown by evidence … of a request or suggestion by the dominant party.”).
Finally, the Swiss case applies those additional factors to the facts of the case before it.

As relevant here, it can scarcely be the subject of debate that in the months preceding the execution of the disputed will, the testator was in declining health. Indeed, his frailties were sufficiently concerning to warrant a request for competency evaluations by his long-serving estate planning attorney. Further, by the time the will was drafted and executed, Swiss, who was able-bodied and mentally firm, had assumed control over the testator’s finances and other aspects of his personal affairs, restricted lines of communication with his children, and disclosed his financial holdings to others. Perhaps of equal import, as astutely noted by the trial court, “[t]he circumstances [of the will] are highly suspicious, including the absence of a documented attorney’s file for the estate preparation … the clear involvement of … Swiss in contacting the lawyer and arranging the meeting, [and] the errors in the will and affidavit.” The preparing attorney was unable to recount the time, place, and manner of signature of the will, and his record was devoid of standard documentation, including invoices, drafts, correspondence, and the like. Further, prior will drafts reflected Swiss was to take no active role in administration, but in the disputed will, she was nominated personal representative.

We conclude these circumstances, coupled with the provisions of the will, were more than sufficient to give rise to a rebuttable presumption of undue influence. See In re Burton’s Est., 45 So. 2d 873, 875 (Fla. 1950) (quoting Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 190 (1932) ) (“Undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.”); Steven G. Nilsson, Florida’s New Statutory Presumption of Undue Influence: Does It Change the Law or Merely Clarify?, 77 Fla. B.J. 20, 24 (2003) (“Undue influence is rarely susceptible of direct proof because of secret or private dealings between the decedent and the alleged wrongdoer; the latter typically testifies that he did nothing wrong, and the decedent never testifies to the contrary.”).

When can a will be challenged?

A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the creation of the will can be gathered and preserved for subsequent litigation. After death, the Personal Representative will issue a Notice of Administration, which starts a 90-day period for challenging a will or the appointment of the Personal Representative. Sometimes, an interested person in the estate will serve a petition for administration on all other interested persons, accompanied by a document called “Formal Notice.”  If a formal notice has been received, the time for starting the will contest is only 20 days from receipt of the formal notice.

Although a will cannot be challenged until after death, often times the undue influencer creates a trust into which assets are placed.  The undue influencer might also have deeds prepared to transfer real estate, and might make changes to bank account titles and life insurance beneficiary designations.  Trusts, deeds, bank accounts and life insurance can all be challenged during life, but only inside of a guardianship proceeding.

Can a will be challenged if the maker was suffering from dementia or Alzheimer’s?

Yes.  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 testator around the time the will was executed.

Can a will that leaves everything to a second spouse instead of children from a first marriage be challenged?

Yes.  While Florida courts are reluctant to overturn bequests to a surviving spouse under an undue influence claim, given the importance of marriage in our society, an egregious set of facts could warrant striking of a bequest to a surviving spouse.  However, the surviving spouse will be entitled to the elective share and other spousal entitlements, absent a valid marital agreement to the contrary.

Can I get a jury trial in a will contest case?

Possibly.  Almost all Florida will contests are heard by the probate division of the circuit court, where jury trials are not permitted and it goes without question that the judge will decide your case. In some situations, if a remedy in probate court is not available, a claim for tortious interference with inheritance expectancy can be filed, which does entitle the challenger to a jury trial.

Does Florida Recognize Co Contest Clauses?

No, Florida does not recognize “no contest” clauses. For will contests, Section 732.517 of the Florida Probate Code provides as follows:

Penalty clause for contest.—A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

For trust challenges, Section 736.1108 of the Florida Trust Code provides as follows:

Penalty clause for contest.—(1) A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.(2) This section applies to trusts created on or after October 1, 1993. For purposes of this subsection, a revocable trust shall be treated as created when the right of revocation terminates.

Can Other Documents Be Challenged On The Same Grounds As A Will?

Yes.  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.

How to Avoid a will Contest

From the perspective of the testator, the best way to avoid a will contest is to not involve any of the beneficiaries of the will in the preparation of the will. 

Based on the Florida case law regarding undue influence, the following the basic steps for how to avoid a will contest are:

  • Do not take the recommendation of a beneficiary for the selection of the drafting attorney.
  • Do not allow a beneficiary to meet with the drafting attorney, or to discuss the estate plan with the drafting attorney.
  • When you meet with the estate planning lawyer, do not take any beneficiary with you to the meeting.
  • When you execute the estate planning documents, do not take any of the beneficiaries with you.
  • After execution of the estate plan, do not give any of the beneficiaries the original of the will, or for that matter a copy of the will. 
  • If you intend to disinherit children or to leave children radically different amounts of inheritances, give your reasons to the estate planning attorney in detail, and insist that your reasons be kept with the estate planning file.  You can even make your own note and ask that it be included with your file and released to the beneficiaries upon your passing.

From the perspective of a beneficiary, if you believe that the testator is going to bequeath you an inheritance and that other family members would be upset by such inheritance, the following steps should be taken to avoid a will contest.

  • Do not make the recommendation as to who should be the estate planning attorney.  Certainly do not take mother to your own estate planning attorney.
  • Do not accompany the testator to the estate planning attorney’s office.  If the testator can’t drive, have the testator take a cab.  If you absolutely must drive the testator, wait in the car.  
  • Under no circumstance should you be present in a meeting with the testator and the estate planning attorney.  Your presence at such a meeting will be the strongest piece of evidence used against you. 
  • Do not be present when the estate planning documents are signed.  Your presence at the execution will be a strong fact used against you in a will contest proceeding. 

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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