Four Reasons Your Will May Be Contested in Court
Having an updated last will and testament is more important than ever, especially now. A poorly drafted will or one that has not been updated frequently can be vulnerable to a will contest.
What Is a Will Contest?
A will contest is a form of estate litigation where the validity of the will is challenged. Will contests should be avoided at all costs. Not only can a contest derail your final wishes, but it can also rapidly deplete your estate as it covers legal fees to defend the will contest, and a will contest can also wreak emotional havoc on the family members left behind. But fear not. With proper planning, you can prevent that from happening.
What Are the Legal Grounds for Contesting a Will?
If a person does have the legal standing to challenge your will, they must prove that the will is invalid due to one of the four reasons below:
- The will is incomplete or faulty. A will can be challenged if it was not signed with the formalities required by Florida law, which provides that a will must be signed by the testator (person making the will) and by two witnesses in the presence of each other. A will that has not been properly witnessed may be deemed invalid purely because the technical requirements were not met.
- Lack of mental capacity. A will can be challenged if the testator (person who made the will) was not of sound mind when the will was executed, also known as “incapacity.” Having the capacity to make a will means that the person understands (a) their assets, (b) their family relationships, and (c) the legal effect of signing a will.
- The will was procured by fraud. A will or trust that is signed by someone who thinks they are signing some other type of document or a document with different provisions is one that is procured by fraud. The could also have been coerced to sign the will.
- The person making the will was unduly influenced into signing it. As people age and become weaker both physically and mentally, others may exert influence over decisions, including how to plan their estate. Undue influence can be exerted on the young and the not so young. Undue influence is more than just nagging or verbal threats. It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.
- According to F.S. §733.107(2), “t]he presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is, therefore, a presumption shifting the burden of proof under.”
- For the party challenging a will or trust on the grounds of undue influence, the challenge is finding the evidence required to shift the burden of proof to the proponent of the will or trust, who is often the alleged undue influencer. The Florida Supreme Court case of In re: Estate of Carpenter held that a presumption of undue influence affecting the burden of proof arises when: Someone who has a substantial benefit under the will possessed a confidential relationship with the decedent and was active in the procurement of the will.
- The Carpenter court provided guidance in determining whether there has been “active procurement” of the will by articulating seven nonexclusive factors to help determine whether there was active procurement:
- The presence of the beneficiary at the execution of the will.
- The presence of the beneficiary at times when the testator expressed a desire to make the will.
- A recommendation by the beneficiary for an attorney to draw the will.
- Knowledge of the contents of the will by the beneficiary prior to execution.
- Giving instructions on preparation of the will by the beneficiary to the attorney drawing the will.
- Securing of witnesses to the will by the beneficiary.
- Safekeeping of the will by the beneficiary after its execution
- While the Carpenter court stated that the seven factors listed above were neither mandatory nor exclusive, Florida courts also recognize at least three other indicators of active procurement:
- Isolating the testator and disparaging family members.
- Inequality of mental acuity between the decedent and the beneficiary.
- Reasonableness of the trust provision.
Who Can Contest a Will?
Will contests are usually brought on by individuals (could be family members, close friends, or business partners) who believe they have been wrongly disinherited. However, not all of your family or friends have the ability to contest your will in court. They must have legal “standing” to file a lawsuit. Standing means that a person involved in a lawsuit will be personally affected by the outcome of the case.
The following people have the ability to contest a will in probate court:
- Current beneficiaries that are named in the will
- Previous beneficiaries who were disinherited but were included in a previous will
- An individual not named in the will but who would be eligible to inherit property based on a state’s intestacy laws (typically a biological child or spouse)
Many times these cases are sent to mediation where the parties decide to cut their losses and split the proceeds of the estate with the challenger rather than continue to spend the estate on legal fees. If a will is successfully contested in court, then the court will declare the will invalid and “throw it out.” If there is a previous will, then the court will abide by those terms. If there are no other estate planning documents, the state’s laws of intestacy will decide who inherits what property. As you might expect, this can be a disastrous outcome for your intended beneficiaries.
Planning tip: Depending on your circumstances and goals, a trust can have superior benefits to a will; like offering better asset protection and enhanced privacy by keeping your personal information out of probate (a public process all wills must go through). If you’d like to learn more about the differences between trusts and will, and see what is a better fit for you, contact us to schedule an attorney consultation.
How to Avoid a Will Contest
Considering the time and expense, will contests are something you’ll want to avoid at all costs. Not only would it jeopardize your final wishes but it also causes unnecessary and painful conflict among your loved ones during an already emotionally trying time. To avoid these disastrous and painful scenarios, consider the following:
- Do not “do it yourself”! Even the smallest mistake can leave your wishes vulnerable to being contested by an unhappy relative or business partner. Only an experienced estate planning attorney will be able to help you create and maintain a plan that will discourage lawsuits.
- Discuss your wishes with your family. It’s important to discuss your wishes with your family. You don’t have to discuss all of the intimate details of your estate plan, but letting beneficiaries know of your wishes and setting expectations for your agents can help avoid future will contests.
- Don’t just disinherit wayward child(ren). Instead of completely disinheriting a beneficiary who may squander their inheritance or use it against your wishes, you can hold their inheritance in a lifetime discretionary trust, which would be overseen by a trusted individual or third party. Your beneficiary would then receive distributions over time instead of outright cash in a lump sum.
- Keep your will up to date. Life changes—people are born and die, property is acquired, marriages happen, and your wishes may change. Your will is only effective when it reflects these changing circumstances. Having an updated will/estate plan that encompasses your current goals will be better at discouraging any future challenges.
The Bottom Line on Will Contests
Will and trust contests are on the rise. Putting together an estate plan that is designed to head off challenges will go a long way to giving you and your loved ones peace of mind.
While it is easy to assume that a will or trust signed in an attorney’s office is valid, this is not always the case. Attorneys who do not specialize in estate planning may be unfamiliar with the formalities required to make a will or trust legally valid in their state. Therefore, it is important for you to work with an attorney who is familiar with the estate planning laws of your state. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family.
Our office can help you create and maintain an estate plan that will be difficult to overturn. Contact us today for an attorney consultation.