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A Florida Will Contest is an adversary proceeding within the meaning of Florida Probate Rule 5.025. A petition for revocation of the probate of a will is brought in probate court. For a court to allow a will contest in Florida, the petitioner must have proper court “standing” – meaning the terms of the contested will must affect him or her in some way. Usually, a will contest is brought by a family member to invalidate a will so that all property will pass by operation of law (intestate succession) or a will contest may be brought invalidate a later will or codicil so that the property passes according to a prior valid will.
In Florida, a will must be executed with the proper statutory formalities. Fla. Stat. § 732.502 sets forth those necessary formalities.
It essentially requires:
Fla. Stat. § 732.501 tells us who may make a will. It provides:
Who may make a will
Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.
The key part of section 732.501 is whether or not the testator is “of sound mind.” According to Florida case law, whether or not a testator was of sound mind is determined at the time the will was executed. “Sound mind means the ability of the testator ‘to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claims a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” Hendershaw v. Estate of Hendershaw, 763 So. 2d 482, 483 (Fla. 4th DCA 2000).
A will contest based on the Testator’s incompetence is fact intensive and often will be based upon medical evidence and expert witness testimony. Such facts often present very close questions and require sound and detailed preparation and investigation as well as the employment of suitable experts and procurement of all available medical evidence.
Because undue influence is usually not exercised openly in the presence of others it is very difficult to be directly proved. Undue influence is usually proved by indirect evidence of facts and circumstances from which undue influence may be inferred. Gardiner v. Goertner, 110 Fla. 377, 385-386 (Fla. 1932).
Courts will consider the mental and physical condition of the testator at the time the will was executed when determining whether undue influence was exercised in the making of a will. See In re Estate of Reid, 138 So.2d 342, 349 (Fla. 3rd DCA 1962), overruled in part on other grounds; In re Estate of Carpenter, 253 So.2d 697, 698 (Fla. 1971). The amount and degree of influence exerted by the influencer upon the testator will depend upon the “bodily and mental vigor of the [testator], for that which would overwhelm a mind weakened by sickness, dissipation, or age might prove no influence on someone with a strong mind in the vigor of life”. Gardiner, 110 Fla. at 385.
In will contests, the party opposing the admission of a will to probate has the burden to produce evidence that supports that position. See Hack v. Janes, 878 So.2d 440, 442 (Fla. 5th DCA 2004). Florida Statute §733.107 describes the procedure followed in will contest cases as follows:
Subsection (2) of §733.107 supersedes Carpenter v. Carpenter, 253 So.2d 697 (Fla. 1971) and Cripe v. Atlantic First National Bank of Daytona Beach, 422 So.2d 820 (Fla. 1982) to the extent that Carpenter and Cripe prohibited the shifting of the burden of proof in undue influence cases. See Hack, 878 So.2d at 443. “Because §733.107(2) specifically mandates that the presumption shifts the burden of proof under §90.301 through 90.304 when a presumption of undue influence arises, . . . the alleged wrongdoer [now bears] the burden of proving that there was no undue influence.” Id. The parts of Carpenter and Cripe “that explain the circumstances giving rise to the presumption of undue influence are not superseded by statute.” Id.
A presumption of undue influence arises when a will opponent establishes that “a person who is a primary beneficiary of a will had a confidential relationship with the [testator] and there was active procurement of a bequest.” Cripe, 422 So.2d at 823.
If the party opposing the will establishes the proponent of the will had a confidential relationship with the testator (man) or testatrix (woman) and then procured a benefit for himself or herself, then the burden of proof shifts to the proponent to disprove undue influence. The quantum of proof required to disprove undue influence under Florida law is the preponderance or greater weight of the evidence. See Hack v. Janes, 878 So.2d 440, 444 (Fla. 5th DCA 2004).
Under Florida law, the following behaviors or facts may indicate undue influence:
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.
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Not Probate Lawyers
We are NOT probate lawyers. Probate lawyers administer estates and advise clients on the drafting of wills and trusts and estate plans. Probate proceedings are largely uncontested and based upon routine filings and form documents, largely specified by statute and rule.
Board Certified Civil Litigation Specialist
Charlip Law Group, LC is a firm that specializes in highly contested litigation matters that include will contests and probate litigation. David H. Charlip, B.C.S., the principal of the firm, is a Board-Certified Litigation Specialist with over 35 years of trial litigation experience.
Experienced Probate Litigators
Charlip Law Group, LC has experience with will contests and probate litigation. An example of a Petition to Revoke Probate filed by the firm may be viewed here.
At Charlip Law Group, LC, we handle our own appeals. Therefore, our clients may rest assured that we will not just be there for trial-level litigation but will pursue the case through all necessary appeals.
Contingency Fee Arrangements in Select Cases
Will contests can be expensive, often involving significant attorney’s time and costs for depositions, expert witnesses and medical discovery. In select cases, Charlip Law Group, LC will consider retention on a contingency basis where its legal fees and costs are paid based upon the resolution of the will contest from the corpus of the estate received by the client, whether by trial or settlement
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The attorneys at our firm bring many years of training and experience to the practice of law. Our multi-lingual staff will deal with your issues promptly. We are conveniently located in Miami-Dade County. Our South Florida location allows us to serve our clients in Miami-Dade, Broward and Palm Beach Counties; throughout Florida and the United States.
Our primary goal – high quality, innovative legal work based on the cutting edge of the law that places the client’s needs first and wins cases. Throughout our legal career, Charlip Law Group LC has always advanced and secured client’s interests with high integrity by adapting and even helping create laws to our client’s unique circumstances and positions.