Will contests are common in Florida, due to the aging population and growing levels of mental disease (such as dementia and Alzheimer’s disease). An unscrupulous family member or friend will have an estate plan prepared for an elderly or infirm person, whereby that person benefits at the expense of the intended estate beneficiaries of the person. When the person dies, estate litigation can commence.
If you are thinking about starting a will contest or already in one, there are steps to take to increase the chance of winning, whether bringing the will contest of defending the will contest.
The most important key to winning is to understand the law of undue influence and lack of capacity in Florida, and to tailor the case so that the case complies with the requirements of the law.
There are several basic will contest cases that can be brought. Each case, and the governing Florida law, are set forth below. To win a will contest, the facts of the case should be developed so that one of the theories to invalidate a will can apply.
Lack of Proper Will Formalities
In order for a will to be effective, Florida probate law requires that the will be signed in the presence of two witnesses, who must also sign the will at the same time as the testator. If credible evidence can be established that the will was not executed with the required formalities, this can be the easiest way to win a will contest, as the facts may not be subject to interpretation.
Undue Influence – Standard Active Procurement | Estate of Carpenter
The typical Florida will contest will be a claim that there was undue influence, whereby the undue influencer caused the testator to execute a will that does not reflect the true intention of the testator. Because the testator is dead, Florida law has created a set of active procurement test, whereby undue influence will be presumed if a substantial beneficiary of the will had a role in actively procuring the will.
Under the seminal Florida Supreme Court case of , the active procurement factors that are recognized under Florida law are as follows:
- Presence of the beneficiary at the execution of the will
- presence of the beneficiary when the testator expressed a desire to make a will
- Recommendation of the estate planning attorney by the beneficiary of the will
- Knowledge of the contents of the will by the beneficiary prior to the time of the execution of the will
- Beneficiary giving instructions to the estate attorney drafting the will
- Securing of witnesses to the will by the beneficiary
- Safekeeping of the will by the beneficiary after the execution of the will
This is not an exhaustive list of all active procurement factors, and the Carpenter case makes clear that there can be other factors to win the will contest.
Undue Influence – No Active Procurement under Estate of Carpenter
Florida law does recognize that there can be undue influence in the absence of any of the Carpenter factors. Although harder to establish, if the beneficiary takes such total control of the testator that free will is destroyed, it could be possible to establish undue influence and hence an invalid will.
Lack of Capacity
If the testator lacks capacity, the key to winning the will contest will be to develop medical evidence that the testator was suffering from a disease of the mind. Sometimes this is obvious so that even a lay person could understand the lack of capacity. In other cases, the disease of the mind is more subtle, requiring the development of medical expert evidence and testimony in order to prevail in the will contest.
It is possible to prevail in a will contest if the testator was suffering from an insane delusion that causes the testator to make a will based on the insane delusion. A will contest can be won if the right evidence can be developed.