What do people fight about in probate? Part 3

Last time we looked at fights over personal representatives.

Today we’re looking at fights over wills; whether a will is valid; whether a will should be admitted to probate and whether a copy of a will should be probated.

I discuss validity of wills and how to challenge a will here:

How to Contest a Will in Florida

Very generally, though, if the will was drafted by a lawyer, the execution of the will (the way the will was done) is going to be presumed to be done in accordance with the law.

Which leaves you questions of whether the person making the will knew what they were doing. As I discuss here:

Can I contest or challenge a Will?

Usually, just because someone is unhappy with the way a will was drafted does not mean that the will is invalid; with some very limited exceptions Florida allows people to cut children and relatives out of wills entirely ( the major exception being where the person had minor children at their death and leave a homestead; normally Florida does not allow someone to transfer a home away from minor children by a will, though there are other ways of seeing that the house goes to someone other than a minor child at the death of the parent) and while Florida does provide some protection to spouses (normally requiring the spouse to get at least a life estate in the family home and the right to a certain share of the estate) adult children, siblings, nieces, nephews and more distant relatives are subject to essentially no protection.

And, normally, just because someone promised to leave an item to a particular person or property to another person does not make that promise enforceable; Florida law regarding “contracts to make a will” is very strict, it requires the promise or contract to be in writing and to comply with the formalities of a will, in other words, to have two witnesses to the promise, and for those witnesses to sign in the presence of the person who made the will and in the presence of the other witness. Very few promises to make a will meet that standard; normally it was a verbal promise; and even if it is in writing, such as in a letter or such, those writings are rarely witnessed. There is an exception for will contracts entered into by an out of state resident; essentially the agreement will be upheld provided it was valid in the state or jurisdiction it was entered into at the time. This usually applies to prenuptial agreements; but theoretically, could apply to other contracts to make a will.

Nonetheless, this does not mean that people aren’t willing to fight about this sort of thing; just that these sorts of cases can be difficult to win. If you have a question about this sort of thing, you need to contact an attorney who handles probate. And as I point out here
You Snooze You Lose Failing to Object in time in a Will Contest

You may have a very short period of time to object.

Lastly, there is the question of what if an original will cannot be found, but someone has a copy of a will.

A copy of a will can be submitted for probate; in order to get the will admitted to probate you need two things; first, you need at least one disinterested witness, someone who is not taking something under the will; and that is if you have a ‘true copy’ of the will; if you don’t have a true copy of the will you need two witnesses. This case discusses the requirement in some detail:
Brennan v. Honsberger

The witnesses, however, are not the tough part; the second requirement is the tough part. Florida presumes that where a will cannot be found that the testator destroyed the will with the intent to revoke the will. In other words, Florida presumes that the reason the will cannot be found is that the person who made the will was dissatisfied with the will and tore it up or burnt it or threw it away with the expectation that the their estate would pass by intestacy. You need to show specific circumstances that would lead a judge to believe that the will was lost or destroyed by accident or was deliberately stolen or destroyed by someone other than the testator. And as this case discusses, you need actual evidence; not just speculation;
Balboni v. LaRocque

Now, it is going to depend on the circumstances; the classic case would be where a house was destroyed in a fire or hurricane or flood that also killed the testator; if the house was destroyed, it is not unreasonable to assume that the will was in the house and was destroyed with the house. But in a case where the house is intact, where the will simply can’t be found, this is a very definite uphill battle, and one that may be difficult to win.

If you have questions about your probate rights in Florida, you need to contact an attorney. If you are in or around The Villages, Florida, please contact my office.

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