The Florida Constitution and Florida courts recognize a person’s right to leave property to whomever one wants and however one sees fit. The fact that a devise is strange or unexpected is not, in and of itself, grounds for challenging a will. Along those lines, there is a saying among probate lawyers and judges that “the law abhors intestacy,” meaning that whenever it is legally possibility that a will can be upheld as valid, a court will not void it.
Nonetheless, there are several deficiencies that might make a will invalid in whole or in part. Challenges to the validity of a will generally fall within two broad categories:
1. Contests alleging deficiencies in the formal execution of the will
2. Contests regarding the testator’s mental state when the will was executed
Once a person’s will is declared invalid, his or her property passes through intestate succession. There are strict time limits within which a person must challenge a will’s validity after it has been admitted to probate. It is important to consult with an attorney before these limits pass to see whether a will contest is the appropriate course of action and whether you qualify as an interested person to be able to challenge the will under Florida law. Note that only an “interested person” – someone who stands to gain from the will or to inherit by way of intestate succession in the event a court declares the will invalid – may bring a will challenge.
DEFICIENCIES IN FORMAL EXECUTION
A testator must strictly comply with the formalities of will creation set forth in Section 732.502 of the Florida Statutes in order to make a valid will. Allen v. Dalk, 826 So. 2d 245, 247. The following are some reasons why a will may be challenged for failing to follow the formal execution requirements:
A. Will not signed “at the end”: Florida law requires that a will be signed by the testator “at the end.” While the Florida Probate Code does not define what is meant by the “end” of a will, court decision have concluded that it refers to the logical end of the document – that’s to say, after the substantive dispositions and provisions – as opposed to the physical end. If a will is initialed or signed on each page but not signed at the end of the document (or if it is not signed at all), this renders the will void. (Note that signing with an “x” or a mark as opposed to an actual signature is acceptable.)
B. Signature(s) not “in the presence” of testator/witnesses: Florida law also requires that a will be signed by two witnesses, and that these witnesses sign in the presence of the testator and in the presence of each other. This has generally been held to mean that the parties must be in each other’s line of sight when signing. Merely being in the vicinity of each other is not sufficient. See Price v. Abate, 9 So. 3d 37 (Fla. 3d DCA 2009).
QUESTIONS ABOUT THE TESTATOR’S MENTAL STATE
C. Testamentary Capacity (inadequate mental health): As you may be aware, many wills include language indicating that the testator is “of sound mind and body.” This is because it is utterly crucial that a person be of sound enough mind when creating a will that he or she understands, in a general way, the nature and extent of the property to be disposed of. In other words, the testator must understand his or her relationship to those who would naturally claim a substantial benefit from the will. This does not mean that the testator is not allowed to disinherit people who would naturally benefit were the will not created (such as children); as noted above, a testator is perfectly allowed to make what some would consider an unjust and/or unnatural will that leaves nothing to the people who would typically expect to benefit.
Testamentary capacity is determined at the time the will is created. This means that a person who has been declared (by a judge or mental health professional) to be mentally incompetent may be of sound mind at the time the will is created; this is known as a “lucid interval.” Conversely, a generally sane person may create an ultimately invalid will because it was created at a moment he or she was having an “insane delusion” (although this is a very rare finding). If a court finds that a person was not of sound mind when the will was made and signed, it will be declared invalid.
D. Undue Influence: This occurs when a person exerts such influence over a testator that the will would have been substantially different were it not for that person’s influence. It can happen in the context of a family member’s pressure, or perhaps pressure from a long-term care worker or friend. There are three basic elements of an undue influence will challenge that must be met:
1. Confidential Relationship: The person suspected to have exerted undue influence must have been in a “confidential relationship” with the testator. This can include a family member, health care provider, financial adviser, spiritual adviser (such as a priest or clergy), or any other person whose relationship, by its nature, would be likely to lead the testator to trust the individual. Spouses are specifically excluded from this definition; accordingly, a person cannot bring a will challenge based on undue influence of the decedent’s spouse.
2. Substantial Beneficiary: The person suspected of undue influence must have been a “substantial beneficiary” of the individual’s will. Whether a person’s share can be considered substantial depends on the facts of each individual case, but large percentages – for example, a full quarter or half of the estate – are clearly considered large enough to fall under this element of an undue influence challenge. To look at it another way, it is unlikely that a person exerted much influence if his or her share of the estate ended up being insignificant (as far as the courts are concerned).
3. Active Procurement: The person suspected of undue influence must have “actively procured” the will. There are seven factors that a court examines to determine whether a person’s actions can be considered active procurement:
a. Presence during the will’s execution;
b. Presence when the testator expressed a desire to make the will;
c. Recommending an attorney to draft the will;
d. Knowledge of the contents of the will prior to its execution;
e. Giving the drafting attorney instructions on how to prepare the will;
f. Securing witnesses to the will’s execution; and
g. Safekeeping the will after its execution.
It is not necessary that all of these factors be present for the court to find active procurement. In the Florida Supreme Court case that created this seven-factor test, the court found that there was active procurement when four of the factors were met. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971).
E. Fraud: There are two types of fraud that a person may commit on a testator that will render all or part of the will invalid:
Fraud in the execution – This is when a person commits some sort of fraudulent act regarding the document itself, such as switching out the pages or modifying the will’s contents without the testator’s knowledge. This might render all or part of the will void.
Fraud in the inducement – This is when a person leads the testator to believe something fundamentally wrong about the nature of the document. For example, a person might tell the testator that she is signing an insurance document when in fact it is a will. This would have the effect, if proved, of voiding the entire will. Or perhaps the person convinced the testator about some false fact concerning one of the beneficiaries – for example, that the testator’s son had stolen money, when in fact he did not – that caused the testator to drastically reduce that beneficiary’s share. Depending on he precise terms of the will, either the portions concerning the son are void or the entire will must be void.
F. Duress: Duress is some form of extreme mental or physical discomfort, or threat thereof, that causes a person to modify or create a will or certain provisions of a will. Once again, depending on the facts either all or part of the will is invalid.
G. Mistake: It used to be the case that unless there was some express or latent ambiguity in the terms of the will, the court could not reform the will to comply with the testator’s clear intent. As of July 1, 2011, however, the Florida legislature has changed the Probate Code such that the court can reform a will in which there is a mistake – even if there is no ambiguity of the language – as long as there is clear and convincing evidence of the testator’s intent. See Section 732.615, Fla. Stat. What’s more, Section 732.5165 of the Florida Statutes allows a court to void a will upon evidence that its execution was procured by mistake. This latter provision is closely related to the second example of fraud in the inducement given above.
Effect of Invalidation
Note that the effect of voiding all or part of a will is for the property to pass via intestacy statutes. When a will is determined to be invalid, it does not re-instate the terms of an earlier will except in rare circumstances. Sometimes, as when a will is voided due to fraud or mistake, simply reverting to intestacy statutes does not actually correct the situation for the person who was wrongly left out of the will (because he or she might not get anything under intestacy either). In such cases, the court may impose what is call a “constructive trust” on some or all of the assets that a pass through intestacy, so that the person who inherited through intestacy is required to manage and disperse the assets for the benefit of the person who was wrongly left out of the will.
The above is by no means an exhaustive list of the ways in which a will may be challenged. If you are aware of a potentially invalid will that has been or may soon be entered into probate, it is important to discuss the matter with an attorney in order for a challenge to be lodged before the time limits to do so expire. An attorney can evaluate whether you are an “interested person” who is legally able to bring a challenge and which, if any, of the above deficiencies might appropriately form the basis of a will contest.