A deceased person’s Will can be challenged in a Florida Court on the following grounds:
Lack of Testamentary Capacity. Under Florida law, a person making a will [testator] is required to have mental competency and to understand the nature of his or her assets and the people to whom the assets are going to be distributed or given. A will can be declared void if lack of testamentary capacity can be proven. Generally, incompetence is established through a prior medical or psychiatric diagnosis of psychosis, dementia, or Alzheimer’s Disease, or through the testimony of witnesses as to the unreasonable, illogical or irrational conduct of the deceased person around the time that he or she executed the will in question.
Undue Influence. Undue influence occurs when the person making the will is forced to execute a will as a result of improper pressure exerted on him or her, generally by a relative, close friend, trusted advisor, or health-care worker. In many cases, the undue influencer will upset a long-established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the person making the will. Often times, one child of the deceased or a caregiver, will suggest that the deceased write the other children out of the will. Other times, the persons who exert undue influence over the person making the will are new friends or acquaintances of the deceased, who “befriend” the deceased in the last months or years of life, generally after the deceased has suffered some decline in mental capacity. Many times we see live-in aides, who threaten to withhold care unless the will is changed in their favor.
Lack of Proper Formalities Required by the Florida Statutes. Proper execution of a will in Florida requires that the will be signed by the testator or deceased and witnessed by two witnesses, who also sign the will before a Notary Public. As such, a will can be contested in Florida on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements under Florida law.
Under Florida law, receipt of the Notice of Administration starts the time period for making a will contest. As such, you must act quickly to try to recover the share of the decedent’s estate that may be properly due to you.
Similarly, a trust, deeds that transfer property and beneficiary or payable on death designations in a bank or other financial account can be challenged under these grounds.
If the misconduct is discovered before the testator or victim dies, a Petition to Determine Incapacity and a Petition to Appoint a Guardian can be filed, which will allow the Court to intervene and recover the stolen assets through the actions of the Guardian. Through the actions of the Guardian, evidence can be secured to establish the original estate plan for use at a subsequent will contest proceeding.
If you believe that you or a loved one may have been improperly removed from a will or trust and deprived of a rightful inheritance, or you have questions about a will, trust or probate proceeding, please call Attorney Clifford Hark at (561) 995-1800 or send us an e-mail for a free initial consultation. If you have received a Notice of Administration involving a Florida Estate and have questions, please contact us.