All sorts of disputes can emerge in families when someone passes away. These disputes can easily lead to families fighting it out in court after the decedent has passed away.
Probate litigation can be expensive, unpredictable, and can take years to settle a case.
So, if you are the nominated personal representative of a potentially contentious or adversarial estate, or if you think you are being denied money or property you are legally entitled to, you need a knowledgeable and experienced lawyer representing you and your interests.
An experienced Florida probate attorney, who is intimately familiar with Florida probate law, will know what factors are important for your case, and how to best protect your inheritance. Don’t leave your welfare and financial interests up to chance. Call the Florida Probate Firm today.
Probate is technically defined as the legal process of authenticating the deceased’s Last Will and Testament, assuming he or she left one. A probated Will is simply a Will that has been reviewed by a court and deemed valid. Probate litigation is a legal proceeding where a probate court hears contested matters regarding the validity of a Will and other probate issues associated with inheritance. Typical examples of probate litigation include:
Will Construction – Florida Probate Rule 5.025 classifies proceedings to construe or interpret the provisions of a Will as adversarial. The motivations for seeking judicial interpretation can be caused by a number of factors, such as poor grammar, the use of vague expressions, or when a Will uses words or expression in an inconsistent manner. Either way, the petitioning party thinks the words used do not clearly and completely express what the decedent wanted to have happen with his or her estate. Sometimes, the personal representative of the estate simply wants to have a judge clarify the meaning in the will before he or she disperses the state’s assets to the identified beneficiaries.
Breach of Fiduciary Duty – The personal representative of the deceased person’s estate owes the decedent the highest loyalty and duty of care. This is known as a “fiduciary’s duty”. To be under this duty means to be bound to act in the best interests of the decedent’s estate. The personal representative must act for the decedent and their money as he or she would act for themselves if it were their money. Failure to do so can result in the personal representative being removed or being held financially liable to the estate, its beneficiaries and/or its creditors. Once a fiduciary has been properly appointed it can be difficult to remove them without some showing of wrongdoing, or mismanagement of assets, associated with the estate. In order to successfully remove a fiduciary, you need more than a mere disagreement, or undue delay associated with the administration.
Will contests are the most common form of probate litigation. A Will contest starts when one party introduces what they claim to be a decedent’s Last Will and a Testament to the court. Then another party seeks to have that Will invalidated for some reason so that it has no legal effect.
There are strict deadlines for contesting or “challenging” a Will. If someone opens a probate and introduces a Will, all the other parties only have a limited amount of time to bring a Will contest. In Florida, a party who receives Notice of Administration in the mail that a probate proceeding has started, usually has only 3 months to file a petition to contest the Will or lose the ability to do so forever.
A Will contest can be based on several grounds, including lack of testamentary capacity, undue influence, or a mistake in execution.
Lack of Testamentary Capacity – a person who makes a Will must have testamentary capacity at the time of execution. Testamentary capacity can be described as sound mind or mental competency, the level of competency required to execute a Will is lower than the capacity required of many other types of contracts.
There are several specific factors courts consider when addressing whether a person lacked testamentary capacity:
Undue Influence – Is another common ground for contesting a will. This is basically a claim that someone with a confidential relationship to the decedent, exerted influence in order for a Will to be executed in which the intentions of the testator were suppressed or dominated. The distribution scheme within the Will resulting from the undue influence, must be difference from the distribution scheme the testator would have otherwise selected. The influencer must also receive a substantial benefit under the Will.
The seminal Florida Supreme Court case is In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971). The Carpenter court held that a presumption of undue influence affecting the burden of proof arises when:
The Carpenter court reasoned that it would not be difficult to prove the first and second elements of the presumption of undue influence, but that the “active procurement” element would be more difficult. Accordingly, it provided guidance by articulating seven nonexclusive factors to assist a trier of fact to determine whether there was active procurement. Those seven “Carpenter factors” are:
Mistake in Execution – A Will can be set aside for a mistake in execution if any of the requirements for executing a valid Will were not met, or if the person making the will did not intend to do so, for example, if the person thought he or she was signing a durable power of attorney, not a will.