Probate Litigation Law

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There are various types of Florida Probate Litigation.

A Florida Will Contest is the most frequent. A Florida will contest cannot occur until the death of the decedent. Florida law and statute 732.518 provide this. This makes sense as a person can change their will at any time while they have mental capacity and even if they had lost capacity potentially could have a lucid moment.

Once a person dies if a beneficiary or someone who would otherwise be an heir is given notice of administration they only have 90 days to contest the validity of the will or challenge either its terms or the right for the personal representative to be appointed. If they are instead served formal notice before the will is admitted to probate the time frame can be cut down to 20 days so it is important that a potential beneficiary act quickly to preserve their Florida Inheritance rights.

While there are a number of states that allow for No contest clauses of varying degrees which provide that if a person contests a will they lose what they are provided for Florida probate law and 732.517 do not allow this. For public policy reasons Florida feels that people should be able to contest Florida wills for any legally valid claim. This is very different than other states such as New York where it will be upheld even if there is probably cause to challenge and only in a limited number of situations may a person challenge the will without losing their share of the inheritance which had been provided for them. In Florida a no contest clause is merely precatory language which means that basically it is merely a suggestion of the testator but it has no legally binding effect and a person can hire a probate litigation attorney and pursue a Florida Will Contest without risking any chance of losing what had been provided for them. If someone had been provided half a million for example but they should have received five million but for undue influence or lack of capacity they may be reluctant to challenge the will as they could wind up with nothing.

A Florida Will Contest is when a person dies as a resident of and domiciled in Florida or owning real estate in Florida in their sole name and there is a will that has sought to be admitted to probate court in Florida but the will, its terms or validity are contested or disputed by an interested person who may be impacted.

Reasons to bring a Florida Will contest include:

Improper execution - If a will was not executed in compliance with Florida law and section 732.502 such as failing to have 2 witnesses or them failing to be in the conscience presence of each other and the testator during the execution would make the will invalid.

If the will was forged it would also be void. Although this only happens occasionally a hand writing expert can testify if the signature on the document appears to be that of the testator and if it is not then the will can be thrown out.

The two most frequent Florida Will Contest reasons are lack of testamentary capacity also known as lack of mental capacity to make a will or Undue Influence.

Testamentary Capacity is typically referred to as 1 the ability to understand generally the nature and extent of ones property for example if Bill Gates had believed that he had was only worth $50k and not $50 billion it would be an obvious example of not understanding the nature and extent of his property (although most of his property will be left to charity upon his and his wife’s passing), 2 the relationship to those who would otherwise be their heirs (or as statutes and case law have termed it the natural objects of ones bounty) if a person does not understand who their children are or cannot recall the names of the children they raised would also obviously raise questions of mental capacity and 3 the impact of the will. They should know or have a general idea of who will be receiving the property how it will be distributed and the impact of their overall estate plan for who gets what.

The above are extreme examples of lacking capacity but if there are other ways to establish lack of testamentary capacity or show diminished capacity. This can often be done through medical records. If it can be established that at the time of execution of the will the person had an advanced case of Alzheimers or significant dementia those can be used based on facts and circumstances to establish the level of mental capacity. While eccentric or merely strange behavior would not do anything as far as challenging a will testimony of crazy acts - forgetting where they were, who there friends were, thinking it was during the Truman administration or testimony of very bizarre or delusional statements or actions could also show along with other factors that the capacity was diminished or lacking. Being of sound mind is one of the requirements for having a valid Florida will. The time that it is measured is at the time of the execution. A person may lack mental capacity given a substantial amount of medication they are on at the time or while rare if it could be proven a person was so drunk at the time they were unable to understand their property who the natural objects of their bounty or what the document would do it can be invalid to pass on their property. Merely being elderly would not establish lack of capacity although typically the lack of capacity cases do come up when the person is elderly and are more suspect for both lack of mental capacity and undue influence with a 98 year old than a 75 year for example. If a person has been declared as unable to handle their own affairs and there was a full guardianship on behalf of someone then they may be presumed to lack capacity although they could prove a lucid moment where they knew exactly what was going on

Florida law (732.5165) says that a will is void execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons.

Undue Influence is present when the testator’s mind was so controlled by persuasion, pressure, or other influences that they did not act voluntarily but were subject to the control of another and they were unable to act voluntarily so the document became the intent and desires of the other who provided undue influence and prevented the testator from exerting what would otherwise have been the testators intent. The undue influence occurs from someone in a position of trust such as a family member, friend or trust advisor or assistant.

The undue influence may seek to change long patterns of how the testator’s estate was going to pass such as divided evenly among the children in prior wills and for decades then suddenly often times shortly prior to death and will the testator is very ill and/or has diminished capacity all to one children who had continually and pressured their elderly parent to make changes and obtained an attorney who would help make the changes then was also at the execution of the change to the will. Florida Law regarding undue influence was established by The Estate of Carpenter a 1971 case which became the primary authority for undue influence type cases in Florida. It laid out several factors or issues. Depending on the facts the whole will or just a portion can be invalidated if undue influence is found to exist.

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:

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

Florida Undue Influence Cases and Lack of Testementary Capacity Cases are often inter related such as diminished capacity leading someone to be more prone to being the victim of undue influence and often have the other mentioned in the probate litigation 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.

In a Florida Will Contest or Florida Probate Litigation Case time lines can be important facts. How long before the decedents passing was the alleged lack of capacity or undue influence. If it occurred a couple weeks prior to the death to again use an extreme example while on substantial medications, being cared for and dependent on the person alleged 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 a decade or more prior to the passing. There would be plenty of time for the provisions to be changed but if it was not done maybe it really was the testators influence and desires and not the person pushing them to do so. 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. As long as the testator was not subject to undue influence and had mental capacity in most situations they can do whatever they want with their property for whatever reason they want.

There are also situations for Florida Estate related litigation such as Florida power of attorney litigation, improper transfer on death accounts, deeds or other property which avoids probate.

A power of attorney is a legal agreement to allow an agent to act on behalf of a principle for their financial affairs and do basically anything they can do. It is often used to help pay bills, file taxes, and handle a persons financial affairs although the agent is a fiduciary and must act in the best interest of the person with whom they are acting and not in a self interested manner or outright theft. Sadly it does happen more than it should that a power of attorney instead of just paying the bills of the principle or looking out for their interests they are outright buying themselves cars or homes for their own self interested reasons or transferring accounts in order to avoid probate and supersede a will so the property will pass all to them and not be shared among the children as the will otherwise would have provided. As long as the principle truly wanted a person to have property and they have the capacity to determine it is a good thing and are not being coerced into giving away the property it is fine but the power of attorney directly taking the assets and claiming they were told to do it or the person would have wanted it when there is no evidence to support that and it is otherwise contrary to an estate plan can be a problem. Even when there is no power of attorney a technique that some use is to coerce and pressure a person to just name them as a joint owner on their property or take advantage of their lack of capacity late in life to put property into their name or jointly with right of survivorship so upon death it will pass to them despite that never having been intended or desired by the principle whose property it was. Often times these types of actions are not discovered until the passing. The transfer on death designation, title of the deed or other beneficiary designations would control over what the will says but if they are in conflict. The same undue influence or lack of capacity could be made to these types of cases as it could in a will contest. If there was improper conduct in the context of a power of attorney, beneficiary designation for property, IRA or whatever else and the property should have otherwise been part of the estate or in a different manner it is subject to estate litigation after the passing. For these types of cases however if they are discovered during life they can be pursued immediately and there is no need to wait until death as there is with a Florida Will contest. Unfortunately Guardianship litigation also occurs as well as it is sometimes the guardian who acts in a self interested manner and takes property on their on behalf or fails meet their fiduciary duties. This can be pursued when anything improper is discovered or upon the passing as things often come up. Upon discovery of improper conduct after the passing if it has not been too long and the facts can still be found and money has not been spent yet an estate litigation attorney can help achieve justice and set things as they should have been but for the improper conduct.

Florida Trust Litigation has the same regarding undue influence or lack of capacity claims as well as similar fiduciary misconduct litigation if the duty of fairness and loyalty and no self dealing are not followed.

A Florida Trust Litigation case could be held in the Circuit Court Probate Division of the county in which the decedent was domiciled at the time of their death or left real estate in.

If a potential beneficiary believes that there has been an injustice and they are the victim of someone having used undue influence to have another cut them out of their share of an estate or provide less for them, that a person had diminished capacity or lack of capacity when they made a will or took other actions to pass on property and medical records, behavior and other facts can verify the situation that existed around the time of the execution of the documents then they should act quickly. Once a person passes on and they receive a notice of administration or formal notice that the will be presented to the court they will have very limited time to pursue a probate litigation, trust dispute, will contest or other challenge to how the property is to pass from the estate.

During a probate estate administration there could be reasons to dispute the estate and bring probate litigation as well even if there is no objection to the documents but sometimes there are disputes regarding how a property is being valued, whether the personal representative is being self interested in purchasing a property for less than full value or giving to a friend or family member in a similar manner as well as failure to diversify with investments causing large loses through gross negligence, failure to see that tax returns are timely filed or other otherwise failing to meet fiduciary duties as personal representative.

The personal representative of an estate owes the beneficiaries and heirs of the estate fiduciary duties of honesty, reasonable competence, and loyalty. Estate Litigation may also occur when there has been a failure to follow Florida Probate statutes, rules of Florida probate procedure, or an order of a Florida probate court, there has been a fraud such as stating that there were only two children of an intestate estate when there were 3 or other fraudulent actions in a probate case.

Florida Will Contests, Estate Litigation, and Probate Disputes do not offer the opportunity for a jury trial. The cases are tried before a judge. However in these types of cases

they are more often than not settled among the Florida probate attorneys and estate lawyers involved with the case after reviewing the facts of the case and the law which apply to it. While the Anna Nicole Smith situation with her former husband is the exception in that it still is dragging on over 15 years (her estate lost the latest case but her attorneys have indicated there may be another appeal) and having made its way to numerous courts even the US Supreme Court typically estate litigation type of cases can be somewhat time consuming as depositions of the parties involved need to be taken, petitions need to be filed and various facts need to be explored then researching those issues and seeking to settle or mediate among opposing parties.

If a person intends to leave more property for one child than another, to a friend or in some unusual manner that may come as a surprise to the family it could be wise to discuss with the family the reasons for doing so as it could reduce the chances that the family member could believe that it must be the result of lack of capacity or undue influence that caused the unexpected result (as they are unable to argue merely unfairness). By doing so they can help save some time and money as well as hard feelings among those whom they are leaving the property to. If one child is a multi millionaire while another is a hard worker but makes a modest amount and is barely getting by it may make sense and not be due to lack of love or respect that the less well of child is provided for more but given that person needs more assistance.

For any Florida Probate related issues contact Florida Probate Attorney David Luber. Estate Planning Master of Laws, past Estate Planning Council President and Broward Bar Probate and Trust Section chair.

He can discuss the facts with beneficiaries of a Florida Probate litigation regarding their situation advise whether they likely have a Florida probate litigation, will contest, Florida estate litigation or related case worth pursuing, explain Florida estate law to them and see that they get help to receive everything they are legally entitled to receive from the Florida estate and seek to insure justice prevails on a Probate law or related case throughout Florida. David can be reached at his direct extension of 954 920-2886 and unless speaking with another client is typically available 9am to 6:30pm Monday through Friday and 11:30-3:30 on Saturday. Email to David@FloridaProbateLawFirm.com is also frequently checked and responded to for all probate and inheritance law related issues.