LibGuides: Will Contest in Florida by Sandy Pineda: Secondary Sources

American Law Reports

American Law Reports are a resource used by American lawyers to find a variety of sources relating to specific legal rules, doctrines, or principles. It has been published by West (a business unit of Thomson Reuters) since 1919 and remains an important tool for legal research.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings
Citation: 53 A.L.R.4th 561

Provides a list of Florida cases.

Most Recent Case Cited: RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008)
Presumption and burden of proof as to undue influence on testator
Citation:154 A.L.R. 583

Provides a list of Florida cases.

Most Recent Case Cited:
Madrigal, Estate of v. Madrigal, 22 So. 3d 828 (Fla. 3d DCA 2009)
Standing of legatee or devisee under alleged prior or subsequent will to oppose probate or contest will
Citation:39 A.L.R.3d 321

Provides a list of Florida cases.

Most Recent Case Cited:Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA 2011)

Corpus Juris Secundum

C.J.S., Wills §§ 3 to 52

95 C.J.S. Wills § 467

American Jurisprudence 2d (Am. Jur. 2d)

Am. Jur. 2d, Wills §§ 47 to 149

79 Am. Jur. 2d Wills §742-955 (2013).

This encyclopedia articles provide an in-depth look at will contests with a focus on black letter law.

NutShells

Wills Trusts and Estates in a NutShell by Robert L. Mennell & Sheri L. Burr
ISBN: 0314180133
Publication Date: October 29, 2007
It provides comprehensive review of the law affecting intestate succession, wills, and trusts. This book introduces wills terminology to the lay audience and updates the law of trusts with references to the Uniform Trust Code and the Restatement of Trusts. It can be adopted to supplement a traditional wills and trust class or as the sole text for a seminar.
Introduction to Estate Planning in a Nutshell by Robert J. Lynn; Grayson M. P. McCouch
ISBN: 0314153063
Publication Date: 2004-08-19
This Nutshell presents an introduction to estate planning. Subjects covered include the transfer of property at death at will under the intestate law, survivor interests, community property, and "simple" wills. Also addresses fiduciary administration and federal estate and gift taxes.
Wills and Trusts in a Nutshell by Robert L. Mennell; Sherri L. Burr
ISBN: 0314280626
Publication Date: 2012-08-13
This book updates laws affecting intestate succession, wills, guardianships and trusts. It introduces wills terminology to the lay audience and summarizes the law of trusts with references to the Uniform Trust Code and the Restatement of Trusts. The book can be adopted to supplement a traditional wills and trusts class or as the sole text for a seminar.

Handbooks

Wills, Estates, and Trusts by Alexander A. Bove
ISBN: 080506298X
Publication Date: 2000-02-15
This book shows you how to:
o Make a will
o Settle an estate
o Make a claim against an estate
o Contest a will
o Create a living trust
o Avoid probate and taxes

Treatise

Restatement (Third) of Property (Wills & Don. Trans.) § 8.3 (2003)
§ 8.3 Undue Influence, Duress, or Fraud

(WestlawNext--Thomson Reuters)
West's Florida Practice Series;§ 5:38; Estate Planning--Jurisdiction of will contests
Florida law recognizes a domiciliary state's order admitting a will to probate and granting letters. Florida requires, therefore, that a will contest be brought in the domiciliary proceedings rather than in the ancillary proceedings, even though proceedings to probate a will do not fall within the full faith and credit clause of the United States Constitution. Such proceedings are conclusive within the state, but they establish nothing beyond the limits of the state in which the probate took place
West's Florida Practice Series; Estate Planning--27:8. Will contests
Assets passing to a surviving spouse as a result of a will contest, however, may not qualify for the marital deduction. In Estate of Simpson v. C.I.R.,1 a defective marital deduction was not saved by a non-adversarial state court proceeding and settlement.

Google Books

Florida Estate Planning, Vol. 1

Google Scholar

Google Scholar
Obtain free case law and legal documents

Legal Information Institute

Legal Information Institute--Cornell University Law School
It is a small research, engineering, and editorial group housed at the Cornell Law School in Ithaca, NY.

Librarian

Legal Encyclopedias

Florida Jurisprudence, Second Edition-Legal Encyclopedia with more than 400 separate titles on a broad range of legal topics.

17 Fla. Jur Decedent's Property Summary
Search Under:

Decedents' Property
Testate Succession
17 Fla. Jur 2d Decedents' Property--In General
§ 102 Generally
§ 103. Constitutional and statutory rights
§ 104. Probate and probate courts
§ 105. Operation and effect of will
§ 106. Offenses
17 Fla. Jur 2d Decedents' Property--Validity as to Contents
§ 107. Generally
§ 108. Ambulatory nature and revocability§ 108. Ambulatory nature and revocability
§ 109. Form of instrument§ 109. Form of instrument
§ 110. Indefiniteness and uncertainty§ 110. Indefiniteness and uncertainty
§ 111. Partial invalidity or failure of will§ 111. Partial invalidity or failure of will
§ 112. Particular types of instruments as testamentary§ 112. Particular types of instruments as testamentary
§ 113. --Trust instruments§ 113. --Trust instruments
17 Fla. Jur 2d Decedents' Property--Testamentary Power and Capacity
1. In General
§ 114. Generally
§ 115. Persons under guardianship
§ 116. Agreement not to make will or not to bequeath or devise particular property
§ 117. Entire will as invalidated by incapacity
2. Mental Condition of Testator
a. In General
b. Evidence
3. Power in Respect of Dispositions Made
§ 136. Generally
§ 137. Unnatural, unjust, or unreasonable disposition
17 Fla. Jur 2d--Capacity to Take Under Will; Bequests for Charitable or Public Purposes
§ 138. Generally
§ 139. Person guilty of slaying of testator
§ 140. Religious, charitable, and educational institutions
§ 141. Effect of discontinuation of organization, or merger
§ 142. Gift to trustee of a trust
17 Fla. Jur 2d--Property That May Be Devised
§ 143. Generally
§ 144. Undivided property; property held in cotenancy
17 Fla. Jur 2d--Agreement to Make a Will or to Devise Property
§ 145. Generally
§ 146. Necessity of writing
§ 147. Necessity and sufficiency of consideration
§ 148. Enforcement; remedies
§ 149. --Specific performance and other equitable relief
§ 150. --Burden of proof; evidence
§ 151. --Measure of damages for breach of contract
17 Fla. Jur 2d--Execution and Attestation
1. In General
§ 152. Generally
§ 153. Necessity of publication
§ 154. Competency of witnesses; interest of witness
§ 155. Self proof of will
§ 156. Will of nonresidents; military wills
2. Signature and Attestation
§ 157. Generally
§ 158. Attestation
§ 159. Duty of subscribing witness
3. Incorporation by Reference
§ 160. Generally
§ 161. Extrinsic trust instrument
§ 162. Separate writing identifying devises of tangible property
18 Fla. Jur 2d Decedents' Property--Probate and Contest of Testamentary Instruments; Record
1. In General
§ 231. Generally; definitions
§ 232. Necessity for probate
§ 233. Duty to produce will for probate; compelling production of will
§ 234. Probate of will of resident in Florida after foreign probate
§ 235. Admission to record of probated foreign will for ancillary administration
2. Admission to Probate; Establishing Validity of Wil
§ 236. Generally
§ 237. Considerations in determining admissibility of will to probate
§ 238. Jurisdiction
§ 239. --Domicile of testator as determinative of jurisdiction
§ 240. Venue
§ 241. Persons entitled to apply for probate
§ 242. Proof of will
§ 243. --Self-proved will
§ 244. Probate of will written in foreign language
§ 245. Discovery of later will or codicil pending probate
§ 246. Foreign and notarial wills
18 Fla. Jur 2d Decedents' Probate and Contest of Testamentary Instruments; Record (Con't)
3. Will Contests
§ 247. Generally
§ 248. Nature of proceeding
§ 249. Who may contest will
§ 250. --After probate
§ 251. Estoppel; waiver
§ 252. Effect of acceptance of benefits under will, or of having interest there under
§ 253. --Absolute or qualified renunciation
§ 254. Grounds for contesting and invalidating will
§ 255. --After admission of will to probate
§ 256. Jurisdiction; venue
§ 257. --Prohibition
4. Parties and Pleadings
§ 258. Generally; parties
§ 259. Pleadings
§ 260. Petition of will contestant
§ 262. Answer
5. Trial
§ 263. Generally
§ 264. Jury trial
§ 265. Determination of issues
§ 266. --Revocation of probate of will
6. Evidence
§267-§278
7. Judgments and Orders; Effect of Probate
§279-§287
8. Costs and Expenses; Attorney's Fees
§288-§294
9. Appellate Review
§295-§298
10. Lost or Destroyed Wills and Codicils
§299-§306
18 Fla. Jur 2d Decedents' Property--Compromise and Settlement; Agreement as to Probate or Contest
§ 307. Generally
§ 308. Statutory authorization of compromise and settlement§ 308. Statutory authorization of compromise and settlement
§ 309. Decrees and orders§ 309. Decrees and orders
§ 310. Agreement not to contest will§ 310. Agreement not to contest will
§ 311. --Effect of agreement; estoppel§ 311. --Effect of agreement; estoppel
§ 312. Agreement providing for distribution different from will§ 312. Agreement providing for distribution different from will
§ 313. Arbitration of disputes§ 313. Arbitration of disputes
18 Fla. Jur 2d Decedents' Property--Construction and Interpretation of Wills
1. In General
§ 314. Generally
§ 315. Provision in will of nonresident decedent
§ 316. Direction for payment of debts or funeral expenses
§ 317. Directions for payment of taxes
§ 318. Disinheritance of heirs or spouse
§ 319. Precatory words; trusts
§ 320. Disposition of share of one of several life beneficiaries on beneficiary's death
2. Extrinsic Evidence in Aid of Interpretation
§ 321. Generally
§ 322. Showing or explaining patent or latent ambiguity
§ 323. Purposes for which extrinsic evidence admissible
§ 324. Identification of beneficiary
§ 325. Identification of property
§ 326. Nature of admissible evidence
3. Rules and Canons of Construction
§327-§352
a. In General
b. Intention of Testator
c. Words and Grammar; Punctuation
d. Presumptions
4. Identification and Description of Persons and Property
§353-§372
a. In General
b. Particular Words and Phrases Regarding Benefic
18 Fla. Jur 2d Decedents' Property--Construction and Interpretation of Wills (Con't)
5. Time of Speaking; After-Acquired Property
§ 373. Generally
§ 374. After-acquired property
6. Vesting of Gifts; Vested and Contingent Interests
§ 375. Generally
§ 376. Time of vesting; death as contingency
§ 377. Option to purchase
7. Class Gifts
§ 378. Generally
§ 379. Determining when a gift is to a class of persons
§ 380. Membership
§ 381. Where there is life tenant
8. Taking Per Stirpes or Per Capita8. Taking Per Stirpes or Per Capita
§ 382. Generally
§ 383. Indicia of intention
9. Nature and Quantum of Estate or Interest Created9. Nature and Quantum of Estate or Interest Created
§ 384. Generally
§ 385. Absolute interest or legal title subject to trust
§ 386. Value or amount of bequest
§ 387. Determination of percentage or proportion of amount of bequest
10. Proceedings to Construe Will
§ 388-§398

220 Fla. Jur. 2d

Trawick, Redfearn Wills & Admin. in Fla.

TREATISE--Will Contests, Second Edition by Eunice L. Ross and Thomas J. Reed

Nature of a Will Contest

This treatise is a great source for an attorney looking to familiarize themselves with will contests. It is divided into three sections. The first focuses on the substantive law of will contests covering the historical background of will contests, jurisdictional issues as well as the topics of testamentary capacity, undue influence and lack of formalities. The treatise also has a chapter dedicated to lesser known grounds for will contests such as mistake, fraud, duress and the tort of suppressing a will. Each topic has numerous citations primary authority from each state.

The second section is a practical handbook for will contests. It begins with a discussion of client counseling for both proponents of wills and contestants. This section also analyzes the evidentiary issues surrounding will contests, pre-trial litigation, general trial preparation, and handling an actual trial. It also provides the basic plan for how to litigate a will contest from beginning to end.

The final section is a collection of useful forms and other tools. This section includes complaints to contest wills, answers and responses, discovery motions, summary judgment motions, and other orders and motions common to will contests.

This treatise is a large and in-depth work and is an excellent starting point on the subject.

Periodicals

Tax Tip--What is Probate?
South Florida Hospital News

By Eric Yankwitt

Law Review Articles

Burden of Proof re: UnDue Influence in Will Contests,77 Fla. Bar J. 20
Florida's New Statutory Presumption of Undue Influence--Does it Change the Law or Merely Clarify? 77 Fla. Bar J. 20
Author: Steven G. Nilsson
Formalities of Gift Law, 67 U. Miami L. Rev. 595
Article: A Legal Analysis of Romantic Gifts, 67 U. Miami L. Rev. 595
Author: Ruth Sarah Lee
Ten Tips for Handling Complex Probate, 84 Fla. Bar J. 45
Article: Ten Tips for Handling Complex Probate, 84 Fla. Bar J. 45
Author: James W. Martin
MAKE IT AN EVEN 10: (Factors to analyze a claim for undue influence in will or trust)
Title: MAKE IT AN EVEN 10: COURTS RELY ON MORE THAN THE SEVEN CARPENTER FACTORS TO ANALYZE A CLAIM FOR UNDUE INFLUENCE OF A WILL OR TRUST
Citation: 83-JUN Fla. B.J. 87
By: David P. Hathaway
UP FROM CARPENTER: UNDUE INFLUENCE IN WILL CONTESTS
Florida's law on undue influence in testamentary matters, like Caesar's Gaul, may be divided into three historical phases. In the first phase, Florida courts developed what might be called a totality of the circumstances test to determine the presence of undue influence exercised upon a testator. In the second phase, a burden-shifting evidentiary presumption was developed. The third phase, that began with the landmark Carpenter1 case, saw a marked, fundamental change in the significance accorded the presumption of undue influence developed in the second phase. This article will trace the development of Florida's law of undue influence and examine the possible effect of Florida's evidence code on the strength of presumptions. Finally, this article will suggest that the Carpenter presumption has occupied too central a role in undue influence litigation and that both the Bench and Bar should reexamine the approach to undue influence developed in the first phase.

Florida Probate Code Manual

Florida Probate Code Manual
For probate coverage you can trust, turn to this analytical treatise on the methods and problems of estate administration and guardianship laws in Florida.

CHAPTER 2--Wills: Execution, Revocation, Contents

§2.01-§2.22

CHAPTER 10--Will Contests

§10.01-§10.12

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