5 Reasons to File a Will Challenge

The death of a loved one can strain relations with family members. When that loved one’s estate plan changed in their final years, or excludes close family members, it could raise concerns that the Will is invalid. Here are 5 reasons you may need to file a Will challenge in the Florida probate court.

Lack of Capacity of the Deceased

Unfortunately, many people’s final years include a loss of mental function. Medical conditions such as dementia, Alzheimer’s, or psychosis can cause older adults to become detached from the world around them. When a loved one changes his or her Will while suffering from one of these conditions, it may be grounds for a Will challenge based on lack of capacity. You and your probate litigation attorney can use evidence of an earlier medical diagnosis or testimony of witnesses that the person was behaving irrationally at the time to have the Will set aside.

Estate Planning Based on an Insane Delusion

In rarer cases, it is not a missing thought process, but a false one that causes the problem. Sometimes a person writing an estate plan – either a Will or a trust – bases his or her decisions on something that simply isn’t true. If they are confronted with evidence to disprove their belief and still choose to act on it, you may have grounds for a Will challenge based on an insane delusion. Note that not just any false belief will be enough to set aside the Will. Instead, your loved one must be shown to have created or changed their estate plan because of the insane delusion.

Fraud

False beliefs aren’t necessarily the result of a mental disorder. Sometimes someone else has helped your loved one form this mistaken belief. If a beneficiary (someone set to receive something in the estate administration) convinced your loved one to change their estate plan based on false statements or misrepresentations, that could be grounds for a Will contest based on fraud. This can include false statements intended to induce a loved one to sign a document which they may not have realized was a Will. Usually these cases involve reducing or eliminating gifts to one person and leaving those items to the person making the false statements instead. If you and your probate litigation attorney are able to demonstrate that the will was created or changed based on misrepresentations or false statements, you may be able to have the Will set aside entirely.

Lack of Formal Will Requirements

Not every document describing a person’s desire for their estate counts as a Will. In Florida, in order to be recognized, a Will must be signed by the testator (the person giving the gift) and witnessed by two witnesses. (The witnesses can watch the signing happen or the testator can acknowledge the Will later). Those two witnesses must also sign the Will in each other’s and the testator’s presence. As with the other forms of Will contests, the formal Will requirements are designed to ensure that the testator’s true wishes are honored. By requiring estate planning attorneys to follow these strict requirements, the law makes it harder for someone to pressure loved ones to change their minds behind closed doors, or present a fake Will to the Probate Court.

Undue Influence

The most common type of Will challenge is also the most complicated: undue influence. This reason to challenge a Will says that someone in a close relationship to the deceased forced, pressured, convinced, or tricked them into changing their estate plan against their will. This can occur when a caretaker, financial manager, or family member steps in after a person is already vulnerable and makes changes to the existing estate plan to his or her own advantage. To challenge a Will based on undue influence, you and your attorney will have to show that the person in question:

• Gets a substantial benefit under the Will
• Had a confidential relationship with the deceased
• Was active in obtaining or preparing the new Will

However, proving this kind of undue influence is often difficult, especially when the family lived far away and did not have regular contact with the deceased. Florida courts have created a list of 10 factors to show this last aspect (called “active procurement”):

1. Being present when the Will was executed
2. Being present when the deceased said they wanted a new Will
3. Recommending the estate planning lawyer who prepared the Will
4. Knowing what would be in the Will before it was executed
5. Giving instructions to the lawyer preparing the estate planning documents
6. Recruiting witnesses
7. Keeping the Will after it was executed
8. Isolating the deceased and talking negatively about family members
9. Having stronger mental acuity than the deceased
10. Receiving an unreasonable gift in the new Will

When these factors tend to show active procurement, and the confidential relationship and benefit elements noted above are also met, it “shifts the burden of proof” at court. Instead of family members having to show undue influence by the beneficiary, it will be up to the beneficiary to prove the influence didn’t happen.

Contact Us Today If You Want to File a Will Challenge

Whenever a deceased person’s estate plan catches the family off guard, leaving siblings, children, or other close family with less than they expected, it may be worth considering a Will challenge. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate your loved one’s choices around the Will and decide if there are grounds to challenge it. We will help you be sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.