What is a will contest?

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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.

Legal Validity

What factual basis is necessary to contest a 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:

  1. The will must be in writing.
  2. The will must be signed by the testator (or at the testator’s direction) in the presence of two witnesses,
  3. The witnesses must sign the will in the presence of each other and the testator.
  4. The will may include what is called a “self-proving affidavit.” This is a document that is signed under oath, and is prima facie proof that the will was executed with the proper formalities.

Testamentary Capacity

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.

Undue Influence
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:

  • (1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
  • (2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

    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:

    1. Confidential Relationship between testator and alleged undue influencer. Carpenter at 701
    2. Fiduciary Relationship between the testator and the undue influencer. Jordan v. Growney, 416 So. 2d 24, 25 (Fla. 4th DCA 1982)
    3. Presence of undue influencer at the execution of the will or trust. Carpenter at 702
    4. Presence of undue influencer on those occasions when testator expressed a desire to make the will or trust. Id.
    5. Recommendation by undue influencer of counsel to draft will and relationship between counsel and the undue influencer. Id.; Herman v. Kogan, 487 So.2d 48, 49 (Fla. 3d DCA 1986)
    6. Knowledge of the contents of the will or trust by the undue influencer prior to execution. Carpenter at 702
    7. Giving instructions on preparation of will by the undue influencer to the attorney drawing the will. Id.
    8. Payment of will or trust preparer by the undue influencer. Id.
    9. Securing witnesses to the will by the undue influencer. Id.
    10. Safekeeping of the will by the undue influencer subsequent to the execution. Id.
    11. Execution of will or trust is kept secret from will contestants by the undue influencer. In re Estate of Burton, 45 So. 2d 873, 875 (Fla. 1950)
    12. Advanced age of the testator or settlor. Id.
    13. Opportunity for the exercise of undue influence. Id
    14. Weak mental and physical health of testator or settlor. In re Estate of Reid, 138 So. 2d 342, 349-50 (Fla. 3d DCA 1962), overruled in part on other grounds, Carpenter, 253 So.2d at 698
    15. Beneficiary caring for testatrix during final months of testatrix’s life. Elson v. Vargas, 520 So. 2d 76 (Fla. 3d DCA 1988), review denied, 528 So. 2d 1181 (Fla. 1988)
    16. Undue Influencer meeting alone at the attorney’s office and instructing the attorney to prepare the testatrix’s will designating the beneficiary as the sole beneficiary and personal representative. Id.
    17. The unnatural disposition of testatrix’s property. Burton, 45 So. 2d at 875
    18. Beneficiary taking complete charge of testatrix’s estate, thereby placing herself in a highly fiduciary capacity. Clark v. Grimsley, 270 So. 2d 53, 58 (Fla. 1st DCA 1972)
    19. Beneficiary treating the will execution process as an urgent matter. Carpenter, 253 So. 2d at 702
    20. Beneficiary is the sole, not just a substantial beneficiary. In re Estate of Van Aken, 281 So. 2d 917, 918 (Fla. 2d DCA 1973)
    21. Beneficiary arranging the appointment with the beneficiary’s attorney. Id
    22. A dramatic change from former testamentary intentions. Newman v. Smith, 77 Fla. 667, 675 82 So. 236, 248 (1919), rehearing denied, 77 Fla. 688, 82 So. 236 (Fla. 1919)
    23. Opportunity and motive (or interest). Gardiner v. Goertner, 110 Fla. 377, 386, 149 So. 186, 190 (Fla. 1932)
    24. Accused kept those for whom the person to be influenced has love for and confidence in away from the person to be influenced In Re Ates’ Estate, 60 So.2d 275, 279 (Fla. 1952); and
    25. Accused tears down this love and confidence to her natural heirs by insinuations and accusations. Id

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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Why Charlip Law Group, LC?

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.

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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.

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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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