Can My Will Be Contested?
Many clients are concerned that their Will may be contested. Usually, we are able to give assurance to our clients that it is unlikely that their Will will be contested. The following has been prepared to answer questions regarding Will contests and the grounds for contesting Wills.
WHO CAN CONTEST MY WILL? It is important to understand that only certain persons are able to contest your will. Attorneys refer to “standing” as the authority for someone to contest your Will. The only persons that have legal authority to contest your Will are persons that would inherit your estate but for your Will, or persons that would inherit your estate under a prior Will.
You are unmarried and have four children. You have no previous Will and have a Will prepared that passes your estate to three of your four children. The omitted child from your Will has standing to contest your Will.
An unmarried person had a Will prepared three years ago leaving his estate to two friends. Before his death, he prepares a new Will leaving everything to his sister. Either of the two friends will have standing to contest the Will.
Often clients have concerns that a step-daughter or step-son will contest their Will. Since the step-daughter or step-son have no legal relationship, they would have no authority to contest the Will.
GROUNDS FOR CONTESTING WILLS. Wills are contested generally under one or more of the following grounds:
1. The Will was not executed in accordance with Florida law.
2. The person was not “of sound mind” to make a Will.
3. The Will was procured by “undue influence”.
THE WILL MUST BE PROPERLY EXECUTED. Florida law provides for a specific procedure that needs to be followed in order for a Will to be valid. Wills that are prepared without the advice and assistance of an attorney are often improperly executed. In order for a Will to be valid, the Will must be signed or acknowledged by the Testator in the presence of two witnesses who must also sign in the presence of each other. Although Wills may appear to be valid, it is sometimes found that the witnesses did not sign in the presence of each other and in the presence of the Testator.
Since this firm began in 1960, a standard procedure has been followed at the time Wills are signed. Due to the safeguards that we provide to our clients when Wills are executed, a Will prepared by this firm has never been successfully contested.
THE TESTATOR MUST BE OF SOUND MIND. In order to be mentally competent to make a Will, a person must have the ability to understand generally the nature and extent of one’s assets, the relationship of those who would be the natural objects of the person’s bounty, and the practical effect of a Will. The law presumes that a person is competent unless the person has been adjudicated by a court of law to be incompetent. A person may be of diminished mental capacity such that the person needs assistance with handling their affairs, but have the competence to make a Will. The circumstances in which the Will is signed are also important. Particularly if the person is in a hospital, are drugs being administered that would affect the person’s mental capacity? If it is a possibility that someone may assert that you are not of sound mind, you may want to consider obtaining a statement from your physician that you are of sound mind.
WILLS PROCURED BY UNDUE INFLUENCE. Undue influence is where the Testator’s mind was so controlled by persuasion, pressure, and outside influences such that the Testator was subject to the will of another person when the Will was signed. Typically, when Wills are contested, lack of capacity and undue influence are both asserted as grounds for contesting the Will. Of particular importance of contesting a Will for undue influence is the presumption of undue influence being created by a showing that one having a substantial benefit under the Will possessed a confidential relationship with the decedent and was active in the procurement of the Will. This is referred to as the “Carpenter presumption.” Accordingly, if you have concern that your Will will be contested, you should not allow a beneficiary under the Will to be involved in any way in the preparation and signing of your Will. A beneficiary should not schedule any appointments with or provide transportation to the attorney’s office. Certainly, at the time you are meeting with your attorney, a beneficiary should not be present. In addition to possibly creating a presumption of undue influence the attorney-client privilege is lost.
OFFICE POLICIES AND PROCEDURES TO PROTECT CLIENTS AGAINST WILL CONTEST. Our office has policies and procedures to protect our clients against Will contests. The right to make a Will disposing of one’s property is an important right that our firm feels should be protected. When we have concerns of a potential Will contest, we endeavor to document our file supporting the validity of the Will. Our firm has an impressive record of never having one of our Wills successfully contested.