I get contacts from potential clients from time to time about “contesting a will”. Someone does not like what a will says and wants to hire a lawyer to fight the will.
There are three basic lines of attack on a will in Florida.
First, ‘execution’, or how the will was signed and witnessed.
Florida law has very specific requirements for a will; available here:
While the requirements are not that complicated, they have to be complied with exactly. If they are not, then a will is simply invalid. In essence, the testator has to sign the will at the end, the witnesses have to sign the will in front of the testator and in front of each other. Note, the testator does not have to sign the will in front of the witnesses, all the testator has to do is sign the will and tell the witnesses that he signed this document and it is his will. Nonetheless, usually the testator signs the will in front of the witnesses. If lawyer is involved in the will signing, usually the lawyer will make sure that the law is complied with; he will have the testator in the same room, sitting around the same table, with the witnesses and have everyone sign as part of one ceremony; have the testator sign, have the witnesses sign right after. The problem usually comes in where there is not a lawyer present at the signing. This is one reason to hire a lawyer to draft your will and not do it yourself or via some sort of software or Internet legal service.
Second, whether the testator was competent, of sound mind, or knew what he was doing. The law presumes everyone to be competent; in the absence of evidence, people are presumed to know what they are doing. The problem is, the will contest usually takes place some time after the will was signed and of course, the person who signed it is dead at that point. They aren’t available to be examined by the court and testify as to whether they knew what they were doing. The point is, unless there is substantial, real, evidence that the person did not know what they were doing, the will is likely to be upheld on competency. Usually the only evidence available is at best, indirect; people who knew the testator, maybe the testators doctor, the lawyer who drew up the will; you have to interview them and find out whether they seemed to know what they were doing. Sometimes medical records can help; if someone was quite ill and under a great deal of medication, you might be able to show that they were so drugged up that they couldn’t know what they were doing at the time. Nonetheless, this can be a very uphill battle.
The third way you can attack a will is by showing what is called “undue influence”. This is a three step process. First, you have to show that someone was in a ‘confidential relationship’ with the testator, the person who died. Second, you have to show that the person in the confidential relationship “procured” the will. Third, you have to show that the person got something under the will that you would normally not expect them to get, more than they would normally get, that they got a ‘substantial benefit’ under the will.
This gets very complicated. A confidential relationship is not well defined; it can be a child, a friend, a neighbor, a spouse, a relative, or a lawyer; basically, though it is someone that that testator trusts, and trusts to do the right thing. The cases speak of someone who the testator expects to put the testators interest above their own; in other words that the person who was in a confidential relationship told the testator that “you can trust me, I’ll do the right thing, and I’ll make sure that what you want happens”.
As far as procuring the will, you need to show that the person in the confidential relationship was active in getting the will drafted and signed. There are a number of factors, and they include, but are not limited to, whether the person selected the lawyer, made the appointment with the lawyer, drove the testator to the lawyer, whether the person was present during the lawyers interview, whether they knew what was in the will, whether they selected the witnesses to the will and whether they kept the will. Basically you have to show that the person in the confidential relationship had a lot to do with the drafting of the will.
As far what was a ‘substantial benefit’, you have to compare what the person got under the will with what they would have gotten without that will; either if the person died without a will, or possibly under a prior will. If the only child of a widowed mother does all these things, sets up the appointment, drives mom to the lawyer, knows what’s in the will, and gets everything under the will, normally you would not expect that to be a substantial benefit. Because, normally, you would expect a parent to leave their only child everything and if the mother had died without a will, the only child would normally get everything as well. If, on the other hand, the guy who comes once a week to look after Moms pool does this, and the will cuts out Mom’s only child and leaves everything to the Pool Boy, you have a problem. Normally you would not expect a parent to cut out an only child out of a will and leave everything to someone who is, in effect, a stranger. Sometimes there’s’ a fuzzy line here; if mom leaves the pool boy a few hundred or a couple thousand dollars, it’s probably not a ‘substantial benefit’ if the estate has other money. If mom leaves the pool boy the car, but leaves everything else to the only child, it might be might be a close call depending on the value of the car and how much other money there is.
The point is, just because someone does not like a will does not mean that it will necessarily be easy to get the will thrown out. These cases tend to take a fair amount of discovery, subpoenaing of records, depositions of witnesses and people who knew the testator, and ultimately, it is up to a judge.
If the will is thrown out, then chances are that the estate will pass via intestacy, or according to what is set out in the state laws. Sometimes, though, if there is a prior will known it may be possible to get the prior will admitted, either because the will that was thrown out was ineffective to revoke the previous will, if, for instance, the will that was thrown out was not executed with the formalities required for a will (in Florida a revocation of a will by writing needs to be executed with the formalities of a will; if the will that was thrown out was not properly executed to constitute a will, then it was not properly executed to revoke the prior will) see:
or under a theory of “dependent relative revocation”. Whether dependent relative revocation is a viable theory is going to depend very heavily on the facts of the case.