• Trust LitigationWill & Trust Contests

    Litigation attacking the validity of testamentary documents is commonly referred to as Will and Trust contests.  Common grounds for a Will and Trust contest include improper execution of the Testamentary Document, incapacity of the person executing the Testamentary Document, fraud, duress, undue influence or mistake.


    Proper Execution.  When the proper execution of a Will and / or Trust is challenged, the complaint will consist of allegations that the required formalities of execution of the Testamentary Documents were not followed.  The litigation will consist of specific and detailed examination of the witnesses, the attorney(s), the notary and anyone else involved in the execution of the document.

    In order for a Will to be valid, the Testator must be at least eighteen (18) years of age or an emancipated minor at the time the Will is executed. The Will must be executed in accordance with the statutory formalities required under Florida Law. The Will must be in writing, and signed by the Testator at the end of the document.

    The Testator must sign in the presence of at least two (2) witnesses or acknowledge his or her signature to at least two (2) witnesses.

    The witnesses must be competent and sign the Will in the presence of each other and the Testator. In Florida, witnesses may be beneficiaries of the Will.

    The testamentary aspects of a Trust are invalid unless the instrument is executed by the Settlor (Creator of the Trust) with the formalities of a Will discussed above.  Further, if the testamentary plan consists of a “pour over” Will and a Revocable (Living) Trust, the Trust must be executed before the “pour over” Will is executed to be a valid beneficiary of the Estate.

    If the challenging party can prove that any of the foregoing formalities were not followed, the Will and / or Trust will be declared invalid.

    Fraud, Duress, Undue Influence or Mistake.  A Will or Trust is supposed to reflect the testamentary intentions of the Settlor / Testator.  If a Will or Trust is procured by fraud, duress, undue influence or mistake, the  testamentary intentions of the Testator / Settlor are defeated.  As a result, any Will or Trust proven to be procured by fraud, duress, undue influence or mistake will be voided.

    A Will or Trust procured by fraud defeats the Testator’s / Settlor’s testamentary intentions through deceit.  The challenging party must show that the perpetrator made fraudulent representations of material facts to the Testator / Settlor with the intent that the fraudulent representations be acted upon which resulted in a Will or Trust that does not express the Testator’s / Settlor’s true testamentary intentions.

    A Will or Trust procured while the Testator or Settlor was under duress may not reflect the testamentary intentions of the Testator or Settlor.

    To void a Will executed under duress, the challenging party must show that the Will or Trust was created under threat of force or blackmail which served to defeat the Testator’s / Settlor’s testamentary intentions.

    Undue influence is a common challenge to a Will or Trust.  It is not uncommon for over zealous heirs to improperly impose their wills and desires on older family members which may result in a Will or Trust which reflects the heir’s desires and not the testamentary intentions of the Testator / Settlor.

    An important consideration in proving undue influence is the establishment of a presumption of undue influence.  If a person challenging the Will or Trust is able to make a preliminary showing that one having a substantial benefit under the Will (i.e., a beneficiary) possessed a confidential relationship with the decedent and was active in the procurement of the Will (i.e., recommended attorney or presence at execution), a presumption of undue influence will arise.

    Florida Law provides that the presumption of undue influence shifts the burden of proof from the person challenging the Will to the proponent of the Will.  Thus, the Will may be voided if the proponent is unable to overcome the presumption.

    A Will or Trust challenge based upon mistake requires a showing that the decedent mistakenly executed the wrong document.  Mistakes in fact, wording or scriveners errors will not result in the Will or Trust being declared void.

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    If you or a loved one needs help with a situation involving one of these areas, please contact Thomas N. Silverman, P.A. at 561.775.7500 (24 hours) or info@FloridaProbateCounsel.com.

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