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Florida Will and Trust Contests Part I: An Overview

June 15, 2015

Florida Will and Trust Contests Part I: An Overview

Unfortunately a testator’s last wishes or estate plan can be simply eviscerated though the actions of unscrupulous characters in their lives.   Because we have seen these issues arise so frequently, this article is meant to provide a basic road map for understanding what to do if you believe that a Will or Trust agreement was procured improperly or changed improperly in Florida. 


In order to have the ability to challenge or contest a Probate in Florida the petitioner must be an interested party. This concept, known as standing, requires that an “interested person” bring such an action.  If you are a beneficiary or legal heir at law you have standing to contest a will.  From a practical perspective, the first step in challenging a Probate requires that you actually receive notice from the attorney providing representation to the petitioner who will first seek to nominate themselves as the appointed Personal Representative.  If you are not required to be notified under law, you have the right to file a Caveat in order to be put on notice of the Probate proceedings.  Florida Statute §731.110 provides the substantive right to a Caveat:

731.110 Caveat; proceedings.
(1) Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court. The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered. The caveat of a creditor may be filed only after the person’s death.
(2) If the caveator is a nonresident and is not represented by an attorney admitted to practice in this state who has signed the caveat, the caveator must designate some person residing in the county in which the caveat is filed as the agent of the caveator, upon whom service may be made; however, if the caveator is represented by an attorney admitted to practice in this state who has signed the caveat, it is not necessary to designate a resident agent.
(3) If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules. This subsection does not require a caveator to be served with formal notice of its own petition for administration.
(4) A caveat filed before the death of the person for whom the estate will be administered expires 2 years after filing.

Once you have obtained a copy of the will and estate planning documents being presented to the Probate Court you will be able to identify the date upon which the documents were executed and the alleged distribution of the decedent’s assets.  Timing in cases of this kind is crucial as many of the potential causes of action for revocation or challenge to a Probate depend on the factual circumstances surrounding the decedent’s life, mental state, and relationships at the time of execution.


Testamentary documents offered to Probate can be challenged from a variety of angles under Florida Law.  Typically the grounds for revocation fall in one of the following categories (1) Incompetency (2) Fraud (3) Undue Influence (4) A defect in the document itself.

A. Incompetency

Florida law requires that someone be of sound mind when they create a will.   The term “sound mind” was provided by the Florida Legislature and is codified in Fla. Stat. 732.501.  Our Florida Court systems have provided some additional analysis to interpret exactly what constitutes a “sound mind.”  Mere old age, physical frailty or sickness are not necessarily inconsistent with testamentary capacity, particularly where the will appears to have been made under fair circumstances and was not unnatural in the disposition of the property. See Heasley v. Evans, Fla.App.1958, 104 So.2d 854.  As the Supreme Court of Florida succinctly provided:  To constitute a “sound mind” or a “sound disposing mind” a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but must also be able to comprehend the extent of his property, and the nature of the claims of others whom by will he is excluding from any of his property.

What we are looking for is the competency at the time the document was executed.  The challenger has the burden to prove that the testator was not in fact competent.   If by chance the testator had been determined to be mentally incompetent at the time of execution then the testamentary document will be presumed to be invalid.  As you might suspect a challenge based upon the mental incapacity of the testator requires an analysis into the relevant medical records and health care providers of the decedent.  Medical records will need to be obtained and physicians deposed in Order to determine the mental competency of the relevant individual.  On the other side of the litigation, in order to preserve a will that is being challenged by way of incapacity, the defender of the will may be able to show that despite evidence of incompetency, the decedent possessed periods of momentary sanity or lucidity.

Finally, in addition to the general incompetency noted above, a specific “insane delusion” may exist, which if identified, may provide the basis to show a lack of testamentary capacity.  The Florida Courts have identified insane delusions as follows: For purposes of determining whether a testator lacked testamentary capacity due to an insane delusion, an “insane delusion” is a spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.  McCabe v. Hanley, App. 4 Dist., 886 So.2d 1053 (2004).  An insane delusion is not just an idea based on a shaky foundation or a mistaken belief, it must be much more.  As one Florida Court put it: Any belief which arises from reasoning based upon a known premise, however imperfect the process may be or however illogical the conclusion reached, is not an “insane delusion,” depriving one of testamentary capacity.  In re Estate of Edwards, App. 5 Dist., 433 So.2d 1349 (1983).

B. Fraud

A will and other testamentary documents may be rendered void by fraud in Florida.  The Florida Supreme Court has identified the basic elements of fraud as follows: (1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.   Instances of Fraud are plentiful, in Will and Probate Contests these can come in the form of forged documents or false representations made in order to induce another to change or create an unnatural testamentary disposition.   If forged document has been presented, a proper litigation of the dispute will typically involve expert handwriting witnesses.  Additionally, if the witnesses to the documents can be obtained, their testimony will be critical.

C. Undue Influence

Undue Influence is typically the strongest basis upon which to challenge a will and for that reason appears to be the most popular challenge to Probate in Florida.  Florida Statute 732.5165 prohibits changes in testamentary distributions by virtue of both fraud and undue influence.  Once again the Florida Court system has expounded upon the statute to provide some required elements for a claim of Undue Influence.   Generally, “Undue influence” in execution of will contemplates over-persuasion, coercion, or force that destroys or hampers the free agency and will power of a testator, and mere affection or attachment or a desire to gratify wishes of one highly esteemed, respected, or trusted may not of itself amount to undue influence.  See for example, In re Peters’ Estate, 155 Fla. 453, 20 So.2d 487 (1945).  The most often cited and most influential case regarding Undue Influence is In re Estate of Carpenter, which provides a more detailed focus of exactly what to look for (or attempt to prove) when considering a claim of undue influence in a Florida Probate.  A rebuttable presumption of undue influence is created if you have (1) someone who received a substantial benefit under the will or testamentary change along with (2) a confidential relationship with the decedent (3) active procurement of the will.

The confidential relationship element has been defined broadly to simply require: where influence has been acquired and abused—in which confidence has been reposed and betrayed.  Quinn v. Phipps, 93 Fla. 805 (Fla. 1927). Importantly a husband and wife have a special relationship under Florida law that cannot create a presumption of undue influence.

What does active procurement mean? The following factors will help to establish although there may be others:

 D. Technical Deficiencies 

In addition to the foregoing sources for challenging testamentary documents based on the facts or substance of the disposition, in Florida, a Will must follow the procedural technicalities contained in Florida law.  Sometimes, a Will is invalid on its face for lack of the formalities required under the statute.  The failure to comply with these requirements renders a last will and testament invalid.  The requirements are contained in Florida Statute 732.502.  

If you are an heir or beneficiary under an estate and believe that it is being administered incorrectly based on the reasons listed in this article or any other reason, give us a call to learn more about your legal options and rights.  

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.