Probate Litigation
In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array 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)representing 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.
Estate Litigation
Estate litigation exists when a person dies and a lawsuit needs to be filed on behalf of the decedent or the decedent's heirs. It may or may not involve contesting a Last Will and Testament or a Revocable Trust. Estate litigation may include opening an estate to file a wrongful death lawsuit against a nursing home, airline, automobile driver, railway or any other person or entity responsible for the death of an individual. While estate litigation can also include probate litigation, Last Will and Testament contests and trust litigation, in certain situations there are no heirs, family members or beneficiaries who are at odds over what the decedent did with his or her Last Will and Testament or trust; instead, for example, the estate litigation may be a lawsuit against a life insurance company that is refusing to honor the terms of a $1,000,000 life insurance policy because the insured committed suicide.
