You can challenge provisions of a will if they result from undue influence
The elderly are often subject to exploitation by the people closest to them. Sometimes this is due to physical and mental impairment, but even if a senior is competent, they can still be taken advantage of financially by an act of fraud, a breach of trust or acts of undue influence by neighbors, friends, family members, advisors, sales people and others.
During probate, a will can be challenged if one of the beneficiaries believe the person who made the will (testator) was induced to act against their wishes and the will’s provisions are really the wishes of another person. A Florida will can only be challenged if the influence was so strong and persistent that it destroyed the ability of the person making the will to act freely and independently.
It’s difficult to prove undue influence in Florida probate court
To prove undue influence, the beneficiary challenging the will must prove the person exerting undue influence:
- Derived substantial benefits from the will’s provisions
- Had a confidential, trusting relationship with the deceased
- Actively procured the contested provisions of the will
The most difficult to prove of these three is active procurement. There are seven criteria the law recommends that courts consider to determine if there was active procurement:
- Presence of the beneficiary at the execution of the will
- Presence of the beneficiary on those occasions where the testator expressed a desire to make a will
- Recommendation by the beneficiary of an attorney to draw the will
- Knowledge of the contents of the will by the beneficiary prior to execution
- Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will
- Securing of witnesses to the will by the beneficiary
- Safekeeping of the will by the beneficiary subsequent to execution
The court may also consider in determining if there was undue influence whether the beneficiary denied other members of the decedent’s family access to the decedent and/or disparaged other family members. Much of the evidence needed to prove undue influence is circumstantial. That makes challenging the will exceptionally difficult. If you suspect undue influence, get advice on your best course of action by contacting a Florida estate planning lawyer familiar with contesting wills in probate court.
A knowledgeable Florida estate planning attorney can help you avoid undue influence and will contests
Disputing a will can be very difficult and emotional. If you have questions about your rights as a beneficiary or suspect undue influence, reach out to the Law Offices of Hoyt & Bryan and learn how we can help you. To complete your estate planning with a board certified estate planning attorney, call us today at (407) 977-8080, or contact us online.