Florida Probate Litigation

Experienced Florida probate lawyers and attorneys represent beneficiaries and personal representatives in all courts of Florida dealing with probate litigation matters.

Florida probate attorneys and lawyers represents beneficiaries, personal representatives, creditors, or other interested persons in Florida will contest cases typically on an hourly basis. In some situations experienced Florida probate attorneys will undertake representation of a beneficiary or others involved in a will contest or other probate litigation on a contingency fee basis, or other alternative billing arrangement. Please contact us to learn more.

There are two major types of litigation in probate, one is a will contest and the other involves estate litigation.

A Will contest is a form of litigation challenging the admission of a Will to probate or seeking to revoke the probate of a Will that is already pending before the probate court. A person cannot challenge the validity of a Will simply because he or she does not like its provisions, or did not, in their opinion, get what they wanted. Challenging the validity of a Will is not contingent on the elements of "fairness" or the reasonableness of its provisions or on the timing of distributions from the probate estate (such as if you prefer an immediate distribution, but the Will provides for you to receive your distribution in multiple distributions at several year intervals).

A Will is likely to be attacked on the basis that a person lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the documents were created, that the Will maker was subjected to fraud, coercion or undue influence during its creation and implementation, that there are ambiguities in the document, or the Will is a forgery or does not conform to legal requirements, such as the manner in which it was signed, or the number and nature of the witnesses.

If the Will is invalidated by the court, the court may disallow only that part of the Will that was challenged or it could invalidate the entire Will. The assets of the probate estate might in that case be distributed as if the person died without a Will (intestacy), or pursuant to the distribution provisions of a prior Will, depending on the specific facts and circumstances.

When someone files an objection to the Will being probated, or produces a different Will, what is known as a "Will contest" has begun. Will contests are not rare. Even though few people are successful challenging a will, such contests can be extraordinarily costly and create substantial delays in the completion of the probate of the estate.

You can not legally contest a Will just because you don't think the results provided by the will are not fair or are unreasonable. For example, if you feel your recently deceased next door neighbor's out of state children are awful people who didn't give her proper respect and they do not deserve to receive any assets from her estate, that will not provide a sufficient basis to challenge her will. To have the right to contest a Will a person must have legally recognized "standing" to object.

A person must have legal “standing” to contest a Will. A child who was disinherited by the Will of an angry parent, or perhaps by a kindly parent who felt that the local charity rather than his children would benefit more from his assets, would have legal standing to initiate a "Will contest". Or, should a Will give one sibling a disproportionately large share of a parent's estate and the other child, or children, a disproportionately small share, the ones receiving less than their proportionate share have standing to challenge the will. Another example would be if a later Will is less favorable to a beneficiary than an earlier Will, or no Will at all, then that person has legal standing to challenge the later Will.

The filing of a Will contest sometimes is directed at removing the personal representative (executor) appointed by the Will, in an effort to have a different person or trust company serve as Personal Representative for the estate, or as a trustee of Trusts created by the Will.

Most of the challenges to invalidate a Will are filed by potential heirs or beneficiaries who were entitled to little or nothing from the terms of the Will that is being probated. Will challenges must be filed in probate court within a certain amount of time after receiving notice of the death or petition to admit the Will to probate.

The most common challenges to a Will include:

(1) the Will was not properly written, signed or witnessed, according to the statutory requirements

Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.

(2) the decedent lacked mental capacity at the time the Will was signed

Lack of Capacity. Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.

(3) there was fraud, duress or undue influence exercised by someone who had a special relationship with the deceased

Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.

(4) the Will was a forgery

(5) breach of fiduciary duty

Breach of Fiduciary Duty. The personal representative of an estate owes the beneficiaries of the estate certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a personal representative, a bequest may be put in jeopardy. The attorneys of The Coleman Law Firm, PLLC can represent beneficiaries and personal representatives with the following issues:

a. Failure to follow Florida Probate Code, Rules of Probate Procedure, or an order of the probate court

b. Probate Fraud

c. Improper investments

d. Self dealing

e. Excessive compensation

f. When the personal representative’s negligence or probate fraud results in a financial loss to the estate, the probate court can remedy the situation through a monetary award against the personal representative or others involved in the wrongdoing.

g. The Florida probate court can also remove the personal representative if cause can be shown.

(6) elective share