Boca Raton Will Challenge Attorney
Boca Raton Will Contest Lawyer: Helping Families Successfully Mitigate Will Issues
As people continue to live longer lives, it becomes more and more common that significant changes are made to wills and other estate planning documents late in life. In some cases, these documents are prepared at a time when the testator (will maker) is in poor cognitive health and unable to truly comprehend (i) who their family is; (ii) what assets they own; and (ii) the effects of the changes. Under these circumstances, the will may be void under Florida law—that is, treated as though it was never made—due to the testator’s lack of capacity to make the will. When inconsistencies or issues arise in a will, it is imperative that individuals and families seek experienced legal counsel with a Boca Raton will contest lawyer.
Our Will Challenge Lawyer Explains the Grounds for Contesting a Will
Disposing of one’s money, property, and other assets after one’s death is not a task to be taken lightly. As such, the law imposes a strict set of requirements on individuals wishing to execute a will in order to minimize the chances that there will be errors when distributing the testator’s estate exactly as he or she wished. When those requirements are not met — or worse, when greed or jealousy draw the integrity of a will into question — a will contest may ensue.
Below, we’ll take a look at some of the most common grounds for contesting the validity of a will in Florida.
Lack of Valid Execution
There are five basic requirements all wills must meet in order to be considered valid. They are:
- The testator must be at least 18 years old
- The testator must be of sound mind (also known as “testamentary capacity”)
- The will must be in writing
- The testator must sign the will or direct someone else to sign it at the testator’s direction and in his or her presence
- The will must be signed in the presence of two witnesses, who must also sign it
If the testator failed to follow one or more of these formalities, a probate court may find that the will is invalid.
Lack of Capacity
Generally, testamentary capacity requires that the testator understand the nature and extent of the property to be disposed of, his or her relation to those who will benefit under the will, and the practical effect of the will as executed. If the testator lacked capacity at the time he or she executed a will, the will’s validity will be called into question.
Undue influence occurs when the testator’s free will was overpowered or manipulated by someone else, which caused him to dispose of property in a way that he would not have otherwise. It occurs most often in cases where the testator and the person exerting the influence share a “confidential relationship” in which the testator trusts in and relies heavily on the influencer.
Fraud and Forgery
A will that is procured by fraud is one that the testator is tricked into signing, usually as a result of being told that the will is a different, more innocuous, document. A forged will is one that is made without the testator’s knowledge and bears a forged signature. A will can also be forged when someone other than the testator edits or otherwise modifies the will without the testator’s knowledge or consent.
A will’s validity may also be attacked when an individual presents evidence that the will in question was revoked by a later will or codicil. A testator can revoke a will either in writing (i.e., by executing a subsequent will or codicil), or through action (i.e., by tearing, burning, obliterating, or otherwise destroying the will).
Understanding Wills, Document Inconsistencies, and the Dispute Process
In some circumstances, as individuals age, they become subject to increasing pressure from those around them—a spouse, a child, a caretaker—to make changes to their will and other estate planning documents. Florida law states that where a substantial beneficiary of a will who occupies a confidential relationship to the testator is active in procuring the will, a presumption arises that the will is void for undue influence. Put another way, where someone close to a testator obtains a significant interest in the estate through his or her own efforts, the law presumes that such a document is invalid.
The common thread which runs through incapacity and undue influence cases is that they suggest that the decedent’s will being offered for probate does not reflect the decedent’s true wishes, intentions, and desires. In cases of incapacity, it is alleged that the will is the product of a profound inability to know and understand one’s actions. In cases of undue influence and fraud, it is suggested that the will being offered for probate reflects what someone else wants.
It is important to understand that courts and judges do not review wills for incapacity or undue influence as a matter of course. In other words, the terms of the will are not examined to determine whether the will appears fair or appears to articulate a reasonable estate plan. A court will not refuse to admit a will to probate simply because it appears to favor one family member more than others, nor will a court deny probate on the basis of the decedent’s age at the time the will is made. It is the responsibility of an interested person—that is, someone who would be affected if the tainted will is validated by the court—to petition the court and bring to the court’s attention that there is some basis for refusing to admit the will to probate. Similarly, if the action is commenced within the requisite time, an interested person can ask the court to revoke probate or retroactively determine that a document previously determined to be a valid will is, in truth, not valid for one of the reasons described above.
Equally important as understanding the law and the bases upon which the probate of a will can be denied or revoked is knowing how to build a claim or defense in such a case. This often involves interviewing and obtaining testimony from lawyers and other individuals with whom a decedent discussed his or her personal and financial affairs. Will contests inevitably will involve inquiry into the cognitive and physical health of the decedent, with an emphasis on the decedent’s condition when the contested document or transaction was executed. In some cases, the testimony of friends and family members is also critical.
Contact an Experienced Boca Raton Will Contest Lawyer Today
The Ellis Law Group, an established Boca Raton firm, has the knowledge and experience that it takes to effectively handle will contests. To see how we can help you mitigate issues or inconsistencies in a will, schedule a consultation today. Contact us online or by phone at 561-910-7500 to speak with a Boca Raton will challenge attorney and discuss your options.