With so many emotions involved with drafting wills and the death of a loved one, contesting a decedent’s will and last wishes is a difficult proposition. A last will and testament is not invalid simply because a party does not like the contents. In many cases, a decedent can purposely exclude family members from a will, or may limit their devise under the terms of a will. The reasons for the decedent’s perfectly legal actions may prove difficult to understand and accept. There are, however, specific drafting requirements for wills. The decedent must draft the will, or appropriately direct another to draft the will, with what is known as testamentary capacity. Additionally, a certain individual or group of individuals may inappropriately influence the decedent at the time he or she drafts the will. Whatever the case and whether you are seeking to contest or defend the validity of a will, the Florida probate attorneys at Kitroser & Associates have the experience and passion to advocate for best your interests.
Understanding what makes a will valid is critical to understanding whether it is appropriate to contest a will. If there is no basis to question the validity of a will, then a will contest is inappropriate. If there is a question as to whether a will is valid, then consult our knowledgeable Palm Beach attorneys to understand your options. We validate whether the last will and testament is drafted properly, according to the technical requirements of Florida statutes. Other requirements for a valid last will and testament include:
In addition, the actual terms of the will must make sense and follow certain standards. For instance, and unless appropriately excluded, a surviving spouse has a right to an elective share, at least. If a will inappropriately excludes a spouse or limits a spouse’s share, then the written terms of the will may prove invalid. As another example, the will may have some provision which simply does not make sense or cannot be fulfilled. In these cases, the explicit terms of the will are directly open to contest.
It is often difficult to understand someone’s state of mind, especially if one has to rely on second-hand accounts. In Florida, a will must be witnessed – in part to prevent against forgery, and in part to provide evidence as to the person’s state of mind. A person drafting a will, or a testator, must be of sound mind when they draft the will or direct another to do the same. After all, many wills are drafted by attorneys at the request of a testator. Still, the testator must make provisions for the will with the capacity to do so, and whether a testator has sufficient mental capacity is not always clear cut. A person with the early symptoms of Alzheimer’s or dementia may appear completely normal and communicate effectively. Another individual may struggle with addiction or have issues with spending money, but may also have a very good understanding of their family dynamic and assets. Do such testators have the mental ability to achieve testamentary capacity and draft a will? Each answer to this question requires a fact-driven analysis, which is particularized to the individual and circumstance. An earlier version of a will may have been validly drafted, while a later version is not.
The concept of undue influence may well accompany an analysis of testamentary capacity. In assessing whether undue influence has occurred, a court is looking to see whether another party has unduly influenced the testator to draft a will a certain way. In Florida, numerous factors are considered to prove undue influence. A party who has standing to contest a will can create a presumption of undue influence as to a will if the alleged undue influencer(s) had a confidential relationship with the testator, was a substantial beneficiary under the will, and actively procured the will. Under Florida law, several factors can indicate active procurement of the will, including:
None of these individual actions are undue influence, per se, but they do give an indication that undue influence may have occurred. There are also less subtle indications of undue influence such as physical threats or pressure from a person who is caring for a testator. If you suspect that a testator lacked mental capacity or was unduly influenced in drafting a will, or if you are fighting to defend against such allegations, please contact our experienced attorneys for compassionate guidance.
When you need objective counsel and passionate representation in the face of a will contest, the Palm Beach probate litigation attorneys at Kitroser & Associates are ready to serve you. We have been helping South Florida families with all their estate planning needs for more than three decades. Contact us today to schedule a free consultation at 561-721-0600 or contact us online.
The North Palm Beach Estate Planning Lawyers of Kitroser & Associates, welcome clients from the cities of West Palm Beach, Palm Beach Gardens, Palm Beach, Jupiter, Tequesta, Juno Beach, Singer Island, Lake Park, Hobe Sound, Royal Palm Beach, Wellington, Lake Worth, as well as all of Palm Beach County, Martin County and South Florida.
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