Blogs from July, 2013


Many families, upon the death of a loved one, along with dealing with the obvious associated pain, also, unfortunately, are presented with the situation where they believe that there may have been questionable circumstances involved in the process of the preparation and drafting of the Will. The question arises, are there actually grounds to contest the Will?

The first consideration in making this determination is whether the Will was properly executed. IN RE Estate of Blakenship 122 So. 2d 466 (Fla. 1960) declared that the requirements for execution and qualification are governed by statute and F.S. 732.502 sets for the requirements for proper execution.

A general roadmap requires scrutiny of, at the very least, some of the following issues: F.S. 732.501 indicates that the testator must be of sound mind and at least 18 years of age or an emancipated minor. The Will must be in writing, signed at the end by the testator or another at the testator’s direction, and in the presence of two witnesses. There are also general requirements regarding the circumstances surrounding the witnesses that could invalidate what would seem to be an otherwise compliant document. However, interestingly, the fact that a witness may also be a beneficiary does not invalidate the Will. 732.503 provides that a will may be proved by oath attached to the will, either at the time of execution or at a later date. These “self-proved Wills” may be admitted to probate without further proof.

However, the burden of proof in a will contest is on the proponent to establish the formal execution and attestation of the will.

The requirement of “sound mind” when considering testamentary capacity means, generally, the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty, and the practical effect of the will. This test is applied to the time when the will is executed. Competency is generally presumed and the burden of proving incompetency is on the contestant.

The other statutory grounds to contest include Fraud, Duress, Undue Influence, or Mistake. The elements of duress, undue influence, or mistake are intertwined with the concept of fraud and the general rules relating to fraud usually establish the necessary elements. These elements are false representations of material facts, knowledge by the perpetrator that representations are false, intent that the representation is acted upon, and a resulting injury. Duress involves circumstances that rendered the execution of the will as an involuntary act of the testator. There is an undue influence when the testator’s mind is so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily but was subject to the will of another when the execution took place. A presumption of undue influence is created by showing that one has a substantial benefit under the will possessed a confidential relationship with the decedent and was active in the procurement of the will. The courts have established a list of factors that support the basis for active procurement. In RE Estate of Carpenter, 253 So. 2d. 697 (Fla. 1971) is the leading case on the matter. Obviously, with each factor comes a variety of potential issues and challenges that can be litigated, and have been, previously.

Consequently, if one does believe that a Will was procured as a result of one of the factors above, a Revocation of the Will, either completely or partially, is a potential course of action. However, before taking that step and thereafter addressing the multitude of issues that arise from taking that step, a family and ultimately, counsel, must address the fundamental question of whether the Will can be contested.

If you need to discuss the grounds for a Florida Will Contest, contact the attorneys at Adrian Philip Thomas, P.A. for a free consultation.


Most Recent Posts from July, 2013