The single most common situation that leads to disharmony is when a parent remarries. Usually it's the husband in this second marriage that dies first, and his children may be at odds with their step-mother. Our firm regularly handles this type of situation, and also other types of will and trust contests, including the defense and prosecution of claims that someone was paid too much money for their services. We also handle will and trust construction, and interpretation proceedings.

Someone who wishes to challenge the validity of a Will could argue that it was improperly executed. To be properly executed, it must be signed at the end by the Testator (or by another person at the testator's direction) and the testator must sign the Will in the presence of two witnesses, and that the witnesses sign the Will in the presence of each other. Rarely can it be proved that the Will was executed improperly, because the witnesses usually collaborate on their stories.

Remember that a Florida resident who has testamentary capacity and does not have a spouse or minor child may leave his or her estate to whomever he or she chooses. Nevertheless, the more common attacks are:

Lack of Testamentary Capacity - A Will contest that is based on the testator's lack of capacity must prove that the testator did not understand the amount and nature of his property, did not understand who would ordinarily receive such property if there was no will, and did not understand how this Will disposes of such property. Capacity has been summarized as being able to understand in a general way the nature and extent of one’s assets and the natural objects of one’s affection (family). Lack of Capacity is usually proven by medical records and expert testimony, because the witnesses almost always testify the Testator had capacity.

Undue Influence - this argument admits the testator had sufficient capacity to make a will, but challenges whether the testator made the Will freely. An undue influence petition argues that the decedent made his Will after being coerced by another person. For example, a care giver or neighbor may pressure an elderly person to leave his assets to the care giver while excluding children or other relatives who have had a long history of active participation in the elder’s life. The Courts look at a number of factors including:

(a) presence of the beneficiary at the execution of the will;

(b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

(c) recommendation by the beneficiary of an attorney to draw the will;

(d) knowledge of the contents of the will by the beneficiary prior to execution;

(e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;

(f) securing of witnesses to the will by the beneficiary;

(g) safekeeping of the will by the beneficiary subsequent to execution.

Even if items (a)-(g) are all present, the will could still be valid, so long as the Court finds that there was a legitimate reason for (a)-(g) to have occurred.

Again, most cases allege all three claims, but as the case develops, the focus is usually on undue influence. Undue influence against a spouse, unless there is physical abuse, is a difficult claim to prove.

Marriage fraud: Florida Statute §732.805 provides that a surviving spouse found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to certain rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse, unless the marriage is subsequently ratified. This is a legislative attempt to give the heirs of the Decedent the legal right to pursue litigation in a circumstance where it is alleged the Decedent was the victim of fraud or other outrageous conduct by a "spouse." The principal target would be a "deathbed" marriage, which historically, heirs of the Decedent did not have the legal right to contest.

New Florida Law:
Pay on Death accounts - After Divorce:

F.S. 732.703, effective July 1, 2012, cancels a designation of an ex-spouse under certain circumstances. It applies to the following beneficiary-designated non-probate assets: a life insurance policy, qualified annuity, or other similar tax-deferred contract held within an employee benefit plan;

  • an employee benefit plan;
  • an individual retirement account;
  • a payable-on-death account;
  • a security or other account registered in a transfer-on-death form; and
  • a life insurance policy, annuity or other similar contract that is not held within an employee benefit plan or tax-qualified retirement account.

However, the statute is lengthy and provides numerous exceptions.