Probate, trust, guardianship and inheritance litigation
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Pleading Standing in a Will Contest

By:  Jeffrey Skatoff, Esq.

How Do You Plead Standing in A Will Contest?

Properly pleading standing is a threshold issue in any will contest.  In order to have standing, a plaintiff must allege that the plaintiff will personally benefit from the relief requested.  In a typical will contest, the plaintiff attempts to have the last will revoked, in favor of the prior will or the law of intestacy.

In order to maintain standing, the plaintiff in the will contest must allege that either:

  1. the plaintiff is a beneficiary of the prior will such that the plaintiff receives a larger bequest as compared to the last will, or
  2. under the law of intestacy, the plaintiff receives a larger share of the estate than as compared to the last will.

How Do You Prove Standing in A Will Contest?

While pleading standing in a will contest is easy, proving standing can be difficult.

In Gordon v. Kleinman, 2013 Fla. App. Lexis (4th DCA 2013), the Florida appellate court reversed the probate court’s dismissal of a will contest.  The plaintiff alleged that the last will was invalid as a result of undue influence, and that any and all prior wills that excluded her were also invalid as a result of undue influence. Although the pleading  allegations seems quite thin (thin enough to warrant the probate court warning plaintiff’s counsel about the possibility of sanctions for filing a frivolous pleading), the appellate court reversed, as follows:

“A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds on which the revocation is demanded.” Fla. Prob. R. 5.270. “Hence, whether a person is an ‘interested person’ is an element that must be established by the petitioner seeking revocation of probate . . . .” Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002, 1006 (Fla. 5th DCA 2005). “[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.” Id. (citations omitted). Thus “it is the burden of the petitioner seeking to revoke the present will to establish that the previous will, which also excludes the petitioner as a beneficiary, is invalid.” Id.  To withstand a motion to dismiss, the petition must be reviewed for sufficient allegations that the petitioner is an interested person and that previous wills which excluded the petitioner are invalid. In the second amended petition, petitioner alleged that she was the beneficiary of the 1983 will and that all of the prior wills under which she was not a beneficiary  were the result of undue influence and/or testatmentary incapacity and therefore invalid. Petitioner has pleaded sufficient allegations of standing and the trial court erred in dismissing her petition.   Accordingly, we reverse the trial court’s dismissal of the second amended petition and remand for further proceedings.

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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