Will Dispute

One of the many important documents in a person’s life and well after is his or her Florida will. A Florida will is important because it is a document that dictates how a decedent’s estate will pass after death as well as who will raise our children if we die before they become adults. Wills are important because these documents reflect the client’s intentions on how he or she wants to leave their hard-earned legacy to friends, loved ones, or even charities.

A Will in Florida can be a great estate planning tool, but can often be the subject of legal disputes. Estate litigation in Florida can involve the fiduciaries and the beneficiaries of an estate. The beneficiaries of a will have many rights under Florida law, which also includes the right to dispute a will.

The laws in Florida permit a qualified beneficiary, to dispute a Will subject to Florida Law under several legal theories.

One of the top grounds for a will dispute is the improper execution of the will. This type of will dispute can also be thought of as if the will lacked the proper formalities of a will according to Florida law.

The Florida law has a few requirements for a will to be valid. First, the testator must sign the Will. The testator is the person that creates the will, and the will disposes of the individual’s estate after he or she passes away. Further, the testator must place his signature at the end of the document. If the testator is unable to sign himself, then the law allows another person to sign for the testator in her or his presence.

Two persons must also witness the testator sign the will. The same two witnesses must also sign the will document as well in the presence of the testator. Florida also requires that all signatures be in blue ink.

Florida does recognize most wills executed in other states by non-residents as valid if the wills were validly executed under the resident’s state law. However, Florida does not recognize holographic wills even if this type of will is valid in the state the will was created unless it complies with Florida's statute of wills. A holographic will is a will that is handwritten by the testator without any witnesses. Florida does not recognize nuncupative wills either, which is a will the testator makes verbally to witnesses.

Just about any adult can create a will in Florida. However, this person must have some degree of mental capacity. The good news is that the capacity needed to create a will is a lesser standard than a general capacity standard found in other areas of law. To be mentally competent, the testator must be able to understand the nature of his or her assets. Further, the testator must also understand the nature of his or her beneficiaries, and he or she must also understand the nature of his or her relationship with these people.

If a probate court rules the testator lacked the necessary mental capacity when he or she created the will, then the court will hold the will to be invalid. This means a court may distribute the decedent’s estate according to a former will, or the assets will pass by intestate succession. Intestate succession is when an estate passes to certain family members according to pre-established Florida laws.

Undue influence can occur when the testator or person creating the will is compelled or coerced to sign or execute a will due to improper pressure by a beneficiary. The typical case of undue influence occurs when a relative, friend or someone in a position of power such as a nurse influences the testator to change a long established estate plan. The elements of undue influence are 1) there is a substantial beneficiary under the will; 2) this person occupied a confidential relationship to the decedent; and, 3) this person was “active” in procuring the will.

Undue influence can be hard to establish in probate court because the decedent is no longer alive to testify to his or her motivations.

A will may also be challenged or disputed due to Fraud. Fraud can occur when a beneficiary of a will causes the creator or testator to change the will based upon a misrepresentation. A good example of this could be the testator’s brother tells the testator his son has been convicted of a crime when the event never happened. The elements of estate fraud are 1) false representations of material facts to the testator; 2) knowledge by the perpetrator that the representations are untrue or false; 3) intent that the representations be acted upon; and, 4) results in injury.

A beneficiary may challenge or dispute a will based on other legal theories as well. For instance, a beneficiary could claim the will was made or changed under duress. Duress occurs when a testator executes a will because someone threatens physical or other serious harm upon the testator.

For more information about a Florida, Will Dispute contact us today. The Law Firm of David Goldman PLLC is ranked by SuperLawyers as one of the top estate planning firms in Jacksonville, Florida. Our Florida Will Dispute attorneys pride themselves on helping our clients ensure their wills are valid under state law.