When someone you love dies, it can be a highly emotional time for the family. It can be even more difficult if it becomes known that the now-deceased family member left a will that disinherited a child or spouse. When someone seemingly intentionally leaves a loved one out of the will, there can be many questions. Why would she not think of me? Did she do this on purpose? Why did he leave everything to someone else?
In most cases, courts will strictly apply the wishes expressed in a will. There are, however, some situations in which it may be worth disputing a will. Here are three examples of times when it may make sense to dispute a will.
The Decedent was Not Competent to Make a Will
Florida law requires that a person have a basic, minimum level of capacity to make a will. However, it is a low standard. The Florida Supreme Court once stated that “even a lunatic may make a will…in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville.
Courts are reluctant to invalidate a will on these grounds, but there have been cases of nefarious caretakers convincing dementia patients to alter a will or sign a new will, leaving everything to strangers. In extreme cases, there may be grounds for fighting a will.
Florida law sets forth specific rules for creating a valid will. For instance, there are a few basic requirements for creating a valid will in Florida:
- You must be 18 or older to create and sign a will
- It must be written. Florida does not recognize verbal wills
- Will must be signed by the testator (or another at the testator’s direction)
- The will must be signed by at least two witnesses while in the presence of each other and of the testator (the person making the will)
- The person creating the will must acknowledge signing it in front of two witnesses
Undue Influence and Duress
One of the key requirements to create a valid will in the state of Florida is that the testator (person creating the will) must be creating and signing it of his or her own volition, without being pressured to do so. Florida Statutes 732.5165 provides that a will be considered void if it was “procured by fraud, duress, mistake or undue influence.” In addition, the statute provides that, if a will was revoked under duress, the revocation will not be valid.
If there are concerns that a loved one’s Will was signed or revoked because someone else was threatening physical harm or was otherwise using coercion, it may be possible to challenge the Will in court. When someone alleges that a will was executed or revoked under duress, the evidence is largely circumstantial.
Florida courts typically examine a variety of factors when evaluating claims of duress. As set out in a 1971 Florida duress case, In re Carpenter’s Estate, 253 So. 2d 697, 704 (Fla. 1971), those considerations include the relationship between the person creating the will and the person who allegedly applied duress, whether that person was present at the time the will was executed or revoked, whether the alleged wrongdoer was involved in recommending an attorney, knew of the contents of the will, gave the attorney instructions about what was to be in the will, whether he or she was involved in lining up witnesses to make the execution of a will valid, and whether he or she was responsible for safekeeping the will after it was executed.
Of course, it is not necessary to answer each of these affirmatively for duress to be proven. And, “yes” answers to these questions don’t by themselves mean that there was duress. Your estate planning attorney can help you understand what measures can protect against later claims of duress or undue influence for your estate planning documents.
Although rare, some may suspect that a will was created through the use of a forged signature or by the commission of some sort of fraud. Cases of true forgery are rare, especially given the requirement of having two witnesses sign in each other’s presence. However, it can happen.
Can I Lose My Share for Disputing a Will?
Generally, no. Under Florida law, so-called “no contest” clauses in wills are not valid and are not enforced. However, there may be limited exceptions. Likewise, if the will was originally written outside of Florida, courts may apply different laws to the interpretation of such clauses. Every case is unique and should be discussed with an experienced probate attorney.
Suspect Wrongdoing? Want to Dispute a Will in Florida?
If you suspect problems with a Florida will, you should immediately consult with a local probate lawyer who can review the facts and fight to protect your rights. Call the Judy-Ann Smith Law Firm at 904.562.1369 to discuss your case today.