Probate Fraud Litigation

Probate fraud is not one claim. It is a family of them, and they have different elements, different burdens and different deadlines. A will procured by a forged signature, a caretaker who isolated an elderly parent and walked out with a new will, a personal representative who never disclosed an account, and a sibling who talked a dying parent into changing a beneficiary designation are four separate legal problems. Filing the wrong one, or filing the right one too late, ends the case before the facts are ever heard.

Talk to a Florida probate litigation attorney.
Zoecklein Law, P.A.  |  150 E. Bloomingdale Ave., Brandon, FL 33511
877-206-0022  |  Request a consultation

When Fraud Invalidates the Will Itself

Florida addresses this directly. Under Fla. Stat. § 732.5165, a will is void if its execution was procured by fraud, duress, mistake, or undue influence. Two features of that statute matter more than people expect.

The first is that invalidity can be partial. The statute provides that any part of the will procured that way is void, but the remainder that was not so procured stays valid if it is not invalid for some other reason. A challenge does not have to be all or nothing. Where a single devise was the product of pressure and the rest of the instrument reflects what the decedent actually wanted, the court can strike the tainted portion and leave the rest standing.

The second is that the statute reaches revocations as well. If the revocation of a will was procured by fraud, duress, mistake, or undue influence, the revocation itself is void. That matters when the wrongdoer’s goal was not to write a new will but to destroy an old one and fall back to intestacy or to an earlier instrument that favored them.

Undue Influence and Who Has to Prove What

Most probate fraud cases are litigated as undue influence, and the fight is usually about the burden rather than the facts.

Under Fla. Stat. § 733.107(1), the proponent of the will carries the initial burden of establishing that it was properly executed and attested. Once that is done, the burden moves to the contestant to establish the grounds on which probate is opposed or revocation is sought. That is where a poorly prepared contest dies.

Subsection (2) is the provision that decides many of these cases. It states that the presumption of undue influence is a presumption shifting the burden of proof under sections 90.301 through 90.304 of the Florida Evidence Code. That is a deliberate legislative choice, and it is stronger than the older understanding of the presumption as one that simply disappears once any contrary evidence is introduced. Where the presumption is properly raised, the party defending the instrument has to carry the burden of proof, not merely produce something to rebut it.

Establishing the presumption is a factual exercise: the relationship, the involvement in procuring the instrument, and the benefit taken. Doing it correctly at the pleading stage is what determines who is explaining themselves at trial.

Fraud by the Person Running the Estate

Not every probate fraud involves the will. A personal representative sits in a fiduciary role, and the recurring problems are concealment rather than forgery:

• Assets left off the inventory, or valued at a number no one supports
• Estate funds used for the personal representative’s own purposes
• A sale of estate property to a friend or relative below market
• Accountings that arrive late, arrive incomplete, or do not arrive at all
• Distributions made to some beneficiaries and not others

These are addressed through objections to the accounting, petitions for removal, surcharge, and where necessary a demand that the personal representative account for what was taken. The remedy usually runs against the fiduciary personally, which is why the inventory and the accounting are the documents worth reading closely and early.

Tortious Interference With an Expectancy

Where the wrongdoer’s conduct deprived someone of an inheritance they would otherwise have received, Florida recognizes a claim for tortious interference with a testamentary expectancy. It is a genuine claim, and it carries a genuine trap.

The claim is generally not available to a party who could have raised the issue inside the probate proceeding and did not. As the Fourth District put it in Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017), a party who participated in the probate proceedings is “prohibited from bringing an action for wrongful interference with a testamentary expectancy if it failed to raise its challenges” there, citing Schilling v. Herrera, 952 So. 2d 1231, 1236 (Fla. 3d DCA 2007). The practical consequence is that sitting out the probate case and planning to sue later is usually not a strategy. It is a waiver.

The Deadlines That Decide These Cases

Probate fraud claims are lost to the calendar more often than to the merits.

• Three months to object. An interested person served with a copy of the notice of administration must object to the validity of the will, the venue, or the jurisdiction of the court within three months after service, “or those objections are forever barred.” Fla. Stat. § 733.212(3). That window runs while you are still gathering medical records.
• The creditor period. A claim against the estate is due the later of three months after first publication of the notice to creditors, or thirty days after service on a creditor entitled to be served. Fla. Stat. § 733.702(1).
• The two-year wall. Fla. Stat. § 733.710 bars claims two years after death regardless of whether letters have been issued, subject to that section’s own exceptions for timely-filed claims and for recorded mortgages, security interests and possessory liens.

If you believe an estate is being administered on a document that does not reflect what your parent wanted, the time to have it looked at is now, not after the accounting is approved.

How We Handle These Cases

Probate fraud cases are won on the record that existed before anyone died: the drafting attorney’s file, the medical chart, the bank’s signature cards, the caretaker’s schedule, the phone records that show who was in the house. We build that record first and decide what to file second, because the choice among a will contest, a removal petition, a surcharge action and a tortious interference claim depends on what the documents actually support.

For the broader picture of estate and trust disputes, see our pages on probate litigation, contesting a will in Florida, undue influence will contests, and Florida trust litigation.

Concerned about fraud in an estate?
Zoecklein Law, P.A.  |  877-206-0022  |  Request a consultation

This page is general information about Florida law and is not legal advice. Statutory deadlines are strict and fact-specific. Whether any deadline has run in your situation depends on the dates of death, service and publication in that particular estate.