LibGuides: Will Contest in Florida by Sandy Pineda: Relevant Law in Florida and Case Law

Will Contests

Revocation of probate is the usual form of a will contest.

Revocation can be sought when a will or codicil has been admitted to probate and the will:

1) is not executed with the formalities required by law
2) is executed by a testator who is not competent to do so 3
) is executed as a result of undue influence, fraud, duress or mistake or
4) has been revoked by the testator

PROCEEDINGS BEGIN by a petition to revoke the probate in the court where the will was probated alleging the interest of the petitioner; petitioner's disclaimer under the probated will; filing a timely statement of claim, if it is required of the petitioner; an objection to the claim; filing the independent action to contest the will timely, if applicable; and the grounds for revocation.

The will contest can be filed by any interested party who has standing the contest the will.

In a will contest, the personal representative has the initial burden to prove the formal execution and attestation of the will. But the burden shifts to the contestant to establish his/her grounds for the contest, as specified in Fla. Stat. §733.107

STANDING TO CONTEST WILL

Generally, one has standing when he has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008).

WILL CONTEST FOR INTENTIONAL INTERFERENCE WITH A PERSON'S EXPECTED INHERITANCE:

This is a cause of action that can result in EITHER a will contest or an action for tortious interference ln re Estate of Rowland, 504 So. 2d 543 (Fla. 4th DCA 1987)

Relevant Law in Florida

A will is NOT valid UNLESS it is executed with the formalities required by Fla. Stat. § 732.502.

Who Can Make a Will--Fla. Stat. §732.501
1) Any person who is of sound mind and;
2) who is either 18 or more years of age or an emancipated minor may make a will.
Execution of Wills--Fla. Stat. §732.502
8 requirements in Florida as directed in the statute:
1) Testator must be over 18 years old
2) Will MUST be IN WRITING
3) Testator must sign will
4) Signature must be at the end of the will
5) In the Presence of 2 Witnesses
6) 2 Attesting Witnesses
7) Witnesses' must sign in Testator's presence
8) and in presence of each other
Notary Required for Execution of Will--Fla. Stat. §732.503
The Notary is simply acknowledging the signatures of the testator and the witnesses signing the self-proof affidavit.
Qualifications for Witnesses--Fla. Stat. §732.504
There is no particular age limitation for witnesses. Section 732.504 provides that any person competent to be a witness may act as witness to a will. Generally, witnesses are competent, and their attestation valid when they have the ability to observe the testator affix his or her signature, or acknowledge it, or direct its subscription by another, and have the ability to comprehend the nature of the testator’s act. The competency of a witness is determined at the time of the execution of the will. If the witness’ attestation was necessary for a valid will, the will should not be voided if the witness was competent at the time of execution even though the witness subsequently became incompetent.
Revocation by Writing--Fla. Stat. 732.505
Testator Revoked the Will in Writing
Revocation by Act--Fla. Stat. 732.506
Testator Revoked the Will by Destroying the Will
A Will Contest Action MUST Commence After Testator's Death--Fla. Stat. §732.518
"An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator."
Will is Void if It Was Executed by Undue Influence--Fla. Stat. §732.5165
A will-or a portion thereof-procured by undue influence is void

Will "Formalities"

Testator Did Not Sign Her Will--Allen v. Dalk, 826 So. 2d 245 (Fla. 2002)
A will that was not signed by the testator was not entitled to probate because of a lack of compliance with the execution requirements of Fla. Stat. § 732.502(1).
Codicils to Will Held to Same Standard--Baldwin v. Estate of Winters, 944 So. 2d 437 (Fla. 4th DCA 2006)
The requirement of formal execution also applies to codicils executed subsequent to the original will as stated in Fla. Stat. §732.502(5).
Strict Compliance with Execution Req's--Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009)
The general rule is that in order to make a valid will, the testator must strictly comply with the provisions for formal execution.
Testator May Sign His/Her Name With An "X"--In Re Estate of Williams, 182 So. 2d 10 (Fla. 1965)
The will is valid even if the testator merely makes an X instead of signing his/her will.
Signature of the Testator Req'd at The End of Will--Bradley v. Bradley, 371 So. 2d 168 (Fla. 2d DCA 1979)
The general rule is that the end of a will, as contemplated by a statute that requires a testator to sign at the end, is the logical end of the language used by the testator to state his or her testamentary intention, i.e., the sequential end of the text of the will.
Testator's Signature Not Needed On Each Page--In Re Schiele's Estate, 51 So. 2d 287 (Fla. 1951)
Florida Supreme Court held that a will signed at the end by the testator was valid, although it was signed on a line reserved for the signature of an attesting witness.
Sequence of Signatures on Wills Does Not Matter--Bain v. Hill, 639 So. 2d 178 (Fla. 4th DCA 1994)
The order in which the signing occurs makes no difference so long as the witnesses saw the testator sign the will and they signed it in his/her presence and in the presence of the other attesting witness or witnesses.
Witnesses Do Not Need to Read Will Content--In Re Estate of Beakes, 306 So. 2d 99 (Fla. 1975)
The witness is not required to explore the voluntary nature of the testator’s act or the testator’s testamentary capacity, or even that the document that the witness was attesting was a will.
Witnesses Just Needed to Witness Execution Of Will--In Re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978)
Witnesses do not have to sign the will at any particular place or with any particular mental intent.

Lack of Testamentary Capacity

Langford v. McCormick, 552 So. 2d 964 (Fla. Dist. Ct. App. 1st Dist. 1989)
the testatrix took an active role in the creation of a will. The court did not find undue influence because the court held that the decedent procured a new will on her own accord and had the mental capacity require to execute a valid will.

Testamentary Capacity also plays into a beneficiary's ability to actively procure a will.

A Testator MUST have the mental capacity to understand what he is doing with his property when he executes a will or codicil. This entails a comprehension of his/her property, the persons who are beneficiaries and how the instrument affects the property and the beneficiaries. In re Coles Estate, 205 So. 2d 554 (Fla. 2d DCA 1968).

In a case of lack of testamentary capacity, the mental condition of the testator at the time the will was executed is THE ISSUE.

Things that are admissible to determine Testamentary Capacity:

Declarations of the testator
Testator's manner at the time of execution
Expert testimony In Re Weihe's Estate, 268 So. 2d 446 (Fla. 4th DCA 1972)
and Nonexpert Testimony about testator's condition, appearance, conduct, conversation, and other facts, In Re Garrett's Estate, 60 So. 2d 281 (Fla. 1952).

What is The Standard for Testamentary Capacity--In re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983)
Citation: 433 So.2d 1349
The standard for testamentary capacity is whether the testator has sufficient intelligence to understand his ordinary business and to know and understand what disposition he is making of his property at the time he makes a will
Lucid Interval Is Sufficient for Testamentary Capacity--Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647 (Fla.1954)
Testamentary capacity is judged at the time of execution of the will. A person who lacks testamentary capacity may have a lucid interval during which a valid will can be executed.
Lucid Interval Defined--American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998)
The principle means that the testator returned temporarily to a state of comprehension and regained testamentary capacity
UnReasonableness of the Will Does Not Affect Testamentary Capacity--In Re: Estate of Tobias' Estate, 192 So. 2d 83 (Fla. 2d DCA 1966)
Testamentary Capacity is not affected by the reasonableness or unreasonableness of the will.
If Lack of Capacity-Entire Will is Invalid--Williams v. Kane, 88 So. 2d 599 (Fla. 1956)
If Lack of Capacity found, the ENTIRE will or codicil is Invalid

Undue Influence

In Re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971)
The presumption of undue influence arises under Florida law where "a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will."

This is one of the highly litigated elements in probate in the state of Florida.

There are TWO indicators of undue influence:

1) The presence of a confidential relationship; and

2) active procurement of a will

“It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.” In re Estate Carpenter. 253 So. 2d 697, 701 (Fla. 1971). Although it includes a very broad range of activities, a confidential or fiduciary relationship is said to exist when a person significantly relies upon and places trust in another. Id. Carpenter additionally clarifies that, “the relation and duties involved in it need not be legal. It may be moral, social, domestic or merely personal.” Id. at 701. The nature of this relationship provides the opportunity for undue influences to occur.

Carpenter explains the seven elements of active procurement: (but this list is NOT exhaustive, as there are other factors taken into accounts, and NEITHER does it REQUIRE that ALL seven criteria be met):

(a) presence of the beneficiary at the execution of the will;

(b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

(d) knowledge of the contents of the will by the beneficiary prior to execution;

(e) giving of instructions on the preparation of the will by the beneficiary to the attorney drawing the will;

(f) securing of witnesses to the will by the beneficiary; and

(g) safekeeping of the will by the beneficiary subsequent to execution. Carpenter, 253 So. 2d at 702.

“Undue influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.” Newman v. Smith, 77 Fla. 633, 667 and 668, 82 So. 236, 246 (1918).

In re Estate of Lamberson, 407 So. 2d 358 (Fla. Dist. Ct. App. 5d Dist. 1981)
the sole beneficiary of the decedent's will was also a caretaker. The caretaker was found to be in a confidential relationship with the decedent, since she was entrusted with financial responsibilities and held power of atty and guardianship over the Lambersons. Court held undue influence was exercised by caretaker and will was deemed invalid.
In re Estate of Van Aken, 281 So. 2d 917 (Fla. Dist. Ct. App. 2d Dist. 1973)
The exclusion of family members in a will, in favor of friends or caretakers is also indicative of undue influence.
Court held that the will was invalid.
Undue Influence Defined in Florida--RBC Ministeries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008)
Undue Influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.
Proving Undue Influence--Carter v. Carter, 526 So. 2d 141 (Fla. 3d DCA 1988)
To prove undue influence in the procurement of a will, the will contestant MUST show that the respondent: (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the will.
Conduct of Person Acting in UnDue Influence--Coppock v. Carlson, 547 So. 2d 946 (Fla. 3d DCA 1989)
The conduct of the person allegedly exercising undue influence MUST BE of such a degree that the conduct overrides the testator's discretion and destroys his free will.

Cases Where No UnDue Influence was Found

Williamson v. Kirby, 379 So. 2d 693 (Fla. Dist. Ct. App. 2d Dist. 1980)
The beneficiary was a neighbor and close, long-time friend of the decedent. The court held that the beneficiary adequately explained her involvement in the will and ultimately affirmed the validity of the will.
The case held that undue influence, "must amount to over persuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will." Id at 697.

There are instances where friendships, consisting of a confidential relationship, do NOT conclusively indicate undue influence.