Contact Us Today 561-747-4848

Important New Corporate Ownership Filing Requirements

Probate & Probate Litigation

Posted by Gene D. Lipscher | Jan 10, 2019 | 0 Comments

Probate is a judicial procedure involving the gathering up of a deceased person's (“decedent”) probatable assets, paying off the decedent's financial obligations and debts, and then distributing the remaining assets to the decedent's beneficiaries. If the decedent dies with a will, the personal representative who is appointed to handle the estate will distribute the assets of the decedent (also known as the “testator”) in accordance with the testator's instructions contained in his or her will. If the decedent dies without a will, the matter is “intestate” and the assets of the estate are distributed to the decedent's heirs in accordance with Chapter 732, Florida Statutes.

It is not unusual for a testator to execute several wills in his lifetime. The problems arise when the testator changes his will to name different beneficiaries shortly before his death. For example, a 90 year man, who has three children who are all beneficiaries under his 978 will, decides to change his will in 2018 and leave everything to his 25 year old caretaker. In that case, a family member or potential beneficiary can file an action contesting the validity of the later will.

There are two main reasons or causes to contest the will. First, if the testator did not have the mental capacity to understand and make the will at the time of signing it, it may be disregarded by the Court. Florida Statutes require that the testator be of sound mind to make the will. The Courts have held that “sound mind” means the ability of a testator to understand in a general way the nature and extent of the property to be disposed of, his relationship to those who would naturally claim a substantial benefit from the will, as well as a general comprehension of the practical effect of the will as executed. Mere old age, physical frailty, sickness, failing memory, or vacillating judgment are not inconsistent with testamentary capacity if the testamentary prerequisites were possessed by the testator.

The second reason to contest a will is when there is undue influence exercised over the testator. Pursuant to Florida law, a will is void if the execution is procured by fraud, duress, mistake, or undue influence. Undue influence contemplates that the testator's mind was 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 execution took place. In order to show undue influence, it must be shown that the beneficiary stood in a confidential relationship with the testator and derived a benefit under the contested will. Then it must be shown that the beneficiary actively procured the will. This can be shown by the following factors: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

About the Author

Gene D. Lipscher

Gene D. Lipscher, P.A. has represented business clients that serve in a variety of industries, such as: Business & Commercial Litigation Business Transactions Business Formations Contract Disputes & Litigation Construction Litigation Collections Real Estate Litigation Maritime Litigatio...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Ready to Get Started?

Contact us today to schedule an appointment. Get Help Now