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Florida Probate Blog

Posts Tagged: will contest

Contesting a Will in Florida

Written by on Aug 7, 2019| Posted in: Probate Litigation

Contesting a will in Florida can be done in two ways and for the following reasons: Petition to Revoke Probate.  If a will has already been admitted to probate and no deadline prevents a contest, then a petition to revoke probate of the will can be filed to begin a will contest. Objection to Petition for Administration.  If a will has been offered for probate but not admitted to probate by the court, then an objection to the petition for administration can be filed contesting the will.  Undue Influence.  Undue influence is the most common grounds to contest the validity of a will in Florida.  Undue influence is a type of fraud and the general allegation is that the wrongdoer asserted so much influence over the decedent that the will is the product of the wrongdoer’s desires and does not reflect the true desires of the decedent.  For more information about […]

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Lawyer-Client Privilege Does Not Apply to Estate Planning Attorney’s Files in challenge to a Decedent’s Estate Planning Documents

Written by on Mar 28, 2019| Posted in: Estate Litigation

Lawyer-Client Privilege Does Not Apply to Estate Planning Attorney’s Files in challenge to a Decedent’s Estate Planning Documents In general, an attorney’s file is protected by the evidentiary lawyer-client privilege; however, in the contest of estate litigation – will contests and trust contests – an estate planning lawyer’s file is not protected by the privilege and is subject to being produced in litigation discovery. Vasallo v. Bean, 208 So.3d 188 (Fla. 3d DCA 2016) Plaintiffs in probate and trust litigation cases are frequently forced to spend considerable time and money compelling the decedent’s estate planning attorney to produce his or her file and to answer questions at depositions.  Sometimes the objections and motions for protective order come from the defendant.  This is common when the defendant, who is the alleged undue influencer, is also the decedent’s personal representative and attempts to assert the decedent’s lawyer-client privilege to conceal his or […]

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Florida Will Execution: Strict Compliance with Statute Required

Written by on Mar 26, 2019| Posted in: Estate Litigation

A Florida will execution must follow certain formalities as set forth in the Florida Probate Code.   Bitetzakis v. Bitetzakis, — So.3d —-, 2019 WL 405568, 44 Fla. L. Weekly D343. George Bitetzakis died in January 2017.  His grandson was appointed personal representative and petitioned to admit George’s September 2013 Last Will & Testament to probate.  George’s daughter, Alice, objected to the Will alleging it had not been executed in compliance with the statutory formalities set forth in Florida Statute §732.502.  Specifically, Alice alleged that George had not signed the Will within the meaning of the statute. The trial court conducted an evidentiary hearing, during which the following was established through testimony: George, his wife, his friend and his pastor met each week in George’s kitchen for breakfast.  (Sounds like the beginning of a joke, but the punchline in this case is nothing to laugh at.)  On September 26, 2013, George […]

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Probate:  Enforcement of Prenuptial Agreement

Written by on Dec 3, 2018| Posted in: Probate Litigation

In the recently-decided Kellar v. Estate of John W. Kellar, 257 So.3d 1044 (Fla. 4th DCA 2018), the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim. In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, wife filed a petition seeking to admit the will favoring her and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  Wife challenged son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of […]

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Virtual Adoption versus Will Contest

Written by on Sep 4, 2009| Posted in: Estate Litigation

The only situation that I believe would require the virtual adoption case to be determined before the will contest case would be in the context of a pretermitted child where a person omits to provide in his or her last will and testament for a child or adopted child because the child was born or adopted (which presumably would include virtual adoption) after making the last will and testament.

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What Constitutes a Contest In No Contest Provision?

Written by on Jun 16, 2009| Posted in: Probate Litigation

A no-contest clause, also called an in terrorem clause, is a topic I have discussed previously in my blog. Readers may remember that an in terrorem clause is a written sentence in a testamentary instrument (will or trust) that is designed to threaten someone, into refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will or trust that threatens to disinherit a beneficiary if that beneficiary challenges the terms of the will or trust. The Uniform Probate Code, §2-517 allows for no contest clauses so long as the person challenging the will doesn’t have probable cause to do so. Some states, like Ohio, allow for “living probate” and “ante mortem” probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests. […]

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How to Overcome the “Negative Will”

Written by on Apr 13, 2009| Posted in: Probate Litigation

Can disinherited heirs still take inheritance by intestacy?Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devised to another and as to which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967). The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that […]

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Latent vs. Patent Ambiguities in Last Will and Testament Construction Cases

Written by on Apr 7, 2009| Posted in: Probate Litigation

Lawyers and probate courts are frequently asked by relatives of a deceased to consider evidence well beyond the four corners of a last will in determining the “true” donative intent of the testator. However, courts, at least in Florida, are generally bound by the language of a person’s last will and testament unless there is some ambiguity warranting the court’s examination of extrinsic evidence. There are two types of ambiguities in the typical last will and testament construction cases: A last will is “patently ambiguous” if it is ambiguous on its face. Patent ambiguities usually result in the probate courts finding that there is no valid will in effect and no extrinsic evidence is permitted. Some courts have held that where there is a patent ambiguity as to the testator’s intent, the probate court may consider extrinsic evidence. Remember extrinsic is evidence that is not within the document (in this […]

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How Far May the Witness Wander?

Written by on Mar 12, 2009| Posted in: Probate Litigation

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence. A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate.

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No Contest Clauses

Written by on Jan 6, 2009| Posted in: Probate Litigation

Alabama, Ohio, and 13 Other States Need to Follow Florida’s Lead Many decedents in a variety of jurisdictions place no contest provisions in their wills in order to prevent their family members from fighting over the inheritance following death. These clauses, sometimes referred to as in terrorem clauses are defined by Black’s Law Dictionary as ‘[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.’ For example, I have seen the clauses similar to this in many wills in an effort to avoid will contests: “If any beneficiary under this will in any manner, directly or indirectly, contests or challenges this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner […]

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