Blogs from August, 2013


Who can contest a will in Florida?  

This is a common question among potential clients who believe that, due to fraud, duress, undue influence, or lack of capacity, a will being offered for probate is invalid.  In these situations, the reason for the will’s invalidity may be obvious; perhaps the decedent had Alzheimer’s Disease and couldn’t remember his own name on the date he executed and signed the will.  However, when the will document omits or significantly neglects children, spouses, or siblings of the decedent, does that mean those people can automatically file suit?  Who has the standing to contest the validity of the will?

The Fourth District Court of Appeals has recently filed an opinion that speaks to the issue of standing in will contests and highlights the importance of specifically articulating a petitioner’s right to sue in the initial complaint.  In Gordon v. Kleinman, 38 Fla. L. Weekly D1748 (August 14, 2013), the Court reviewed the issue of who may file suit to contest a will where the decedent had previously executed several prior wills.  In Gordon, the petitioner was a beneficiary of the decedent’s prior will, executed in 1983.  Subsequent to the 1983 will, the decedent executed separate wills in 1992, 2003, 2008, and 2009, none of which included Gordon as a beneficiary.  The petitioner thus filed suit, alleging that each of the subsequent four wills was invalid due to undue influence exerted upon the decedent and that the 1983 will was the decedent’s only valid will.

The respondent filed a motion to dismiss the petitioner’s claim, arguing that because she was not mentioned in 1992, 2003, 2008, or 2009 will, the petitioner lacked standing.  The trial court agreed and granted the motion to dismiss, a ruling which the petitioner appealed.

On appeal, the Fourth DCA reviewed the petitioner’s complaint and held that she did have the standing to contest the four wills.  The Court’s ruling noted that “a proceeding to revoke probate of a will may be commenced by “[a]ny interested person, including a beneficiary under a prior will.” Fla. Stat. § 733.109(1).  The Probate Code defines “interested person” as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in any proceedings.”   Fla. Stat. § 731.201(23).

In order to demonstrate to the court that a petitioner is an “interested person” and thus may contest a will, the petitioner’s attorney must be careful to correctly draft the initial complaint.  The complaint should include a statement of the interest the petitioner has in the estate and the facts constituting the grounds on which relief is demanded.  In Gordon, the Court was careful to point out that the petitioner’s complaint alleged that all of the prior wills under which she was not a beneficiary were the result of undue influence and thus invalid.  The Court found that coupled with a copy of the original 1983 will be attached to the petitioner’s complaint, these were sufficient allegations of standing to withstand the respondent’s motion to dismiss.

It is important to note that though the petitioner in Gordon was named as a beneficiary under a prior will of the decedent, the Probate Code does not necessarily require this element before a party has the standing to contest a will.  “Any interested person” as defined in §§ 731.109(1) and 731.201(23) can encompass a broad spectrum.  Under the statute, “anyone who may reasonably expect to be affected” may have the standing to file suit.  Further, the meaning of “interested person” may vary from time to time and must be determined on a case-by-case basis.  See Hayes v. Guardianship of Thompson, 952 So. 2d 498, 507 (Fla. 2006) (holding that the definition of “interested person” requires the trial court to evaluate the nature of both the proceeding and the interest asserted.)

In practice, this means that each individual case should be evaluated by an experienced probate litigation attorney to determine whether an individual will have the standing to state a claim.  If you have a question regarding your standing to contest a will in Florida, contact the attorneys at Adrian Philip Thomas, P.A. for a free consultation.


Most Recent Posts from August, 2013