In Florida, probate litigation is one of the most hotly-contested
areas of the law. Surviving family members may choose to use the judicial system to correct a number of injustices. Probate
is the legal process by which a person's debts are paid and assets owned by the decedent are distributed upon death. Probate
litigation frequently arises in the context of a Will contest. When a decedent has created a Last Will and
Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly
followed.
Usually, Florida probate litigation
is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate
proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept
of challenging the contents of the Last Will and Testament; a provision of the Last Will and Testament; the appointment of
an executor (Florida law refers to an Executor or Executrix as a Personal Representative); or the entire document itself.
The facts of each dispute will define the exact cause of action (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional
Interference with an Expectancy, and/or Improper Signing of the Will) that needs to be prosecuted or defended. However, one
should never rely on a promise to "even out" the estate or "take care of it" soon if served with a Notice
of Administration. Once, the very limited time period (usually 20 days) passes, any promises, representations or guaranteed
to settle any estate dispute or disagreement are worthless and unenforceable unless an attorney has entered into an official
settlement agreement.
Will Contests (or Last Will and Testament Disputes) may involve both executors who have a fiduciary duty to defend
a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament.
For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last
Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove
that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and
Testament can be admitted into Probate and accepted by the court even though it was executed improperly. It is a serious mistake
to assume a Last Will and Testament that appears to be signed correctly actually complies with Florida law. In fact, the burden of proof
is initially on the person challenging the Last Will and Testament to prove that it was not signed in accordance with Florida law. Florida
Statute Section 732.502 requires that a Last Will and Testament is in writing, that it is signed at the end by the Testator
(or by another person at the testator's direction), and that the testator signs the Last Will and Testament in the presence
of two subscribing witnesses. One critical factor is that the witnesses sign the Last Will and Testament in the presence of
each other. To prove whether a Last Will and Testament was improperly signed requires skilled and careful cross-examination
of the witnesses who were present at the time of the signing of the Last Will and Testament.
The major grounds for contesting the validity of a Last Will and Testament are undue influence and lack
of mental capacity or lack of testamentary capacity:
Undue Influence claims challenge whether the testator made the Last Will and Testament freely and without being coerced
by someone. An undue influence lawsuit relates to whether the decedent made his or her Last Will and Testament without being
coerced by another person or persons. For example, a family member, friend, long-time employee, or acquaintance might pressure
a frail, elderly person to leave most or all of his or her assets to that person while excluding children, relatives and others
who should receive the inheritance. Undue influence occurs when a person is compelled to perform an act (signing of a Last
Will and Testament) as a result of improper pressure exerted upon him or her.
Lack of Mental Capacity / Testamentary Capacity claims are based on the testator's lack of mental
capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator
has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved
ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament
disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she
automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and
Testament generally means that the Testator understood the nature and extent of his assets and knew the natural objects of
his bounty (his family). While it may seem that the Testator (the person who signed the Last Will and Testament) was incompetent
or that the Last Will and Testament was the product of fraud, undue influence or overreaching. Lack of
Mental Capacity or incompetence is typically proven by medical records, irrational conduct of the Decedent, and the testimony
of those who observed the Decedent at the time the Last Will and Testament was executed.