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Spiro J. Verras Blog

Wednesday, November 23, 2016

Tips for Avoiding a Will Contest

How can I prevent my will from being contested?

Will challenges and probate litigation are much more common than many people realize, and they often drag on for months and years and can deplete the estate. While entire treatises have been written about this topic, there are just a few basic reasons a will can be contested and some simple steps you can take to prevent such a will contest after your death.

Reasons for a Will Contest

There are a number of bases on which a will (or, with much greater difficulty, a trust) can be challenged. The first is that the will itself was not properly executed. Generally, the document must be signed by the person making it (the "testator") along with two witnesses. While it is not technically necessary to notarize the will, Florida probate law has a provision for "self-proven wills" which can simplify the probate process. This requires the testator and the witnesses to execute a Self-Proving Affidavit before a notary. The need to have a properly prepared and executed last will and testament is one of many reasons that do-it-yourself wills are problematic.

Other reasons for will contests include:

  • The testator lacked the mental capacity to make the will
  • The will was made under undue influence
  • The personal representative is not qualified to serve
  • An act of fraud

How to Avoid a Will Contest

While many may be tempted to write their own will by downloading a form from the internet, this could be a costly short cut. An important way to protect against a will contest is to engage the services of an experienced estate planning attorney who takes the time to fully understand your life situation and your wishes before drafting your will. If the will is later challenged, the attorney who met with you privately, who assessed your capacity. who prepared the document, who went over it with you, and who supervised its execution will be a very important witness in defense of that will.

The most basic reason to challenge a will is the the testator lacked the necessary mental capacity to make one, either dur to dementia or some other disability. Regrettably, many people postpone writing a will until it's too late. It is crucial to plan your estate while you're healthy and your mind is indisputably sharp. If you wait until your physical or mental health is declining, the will will be more vulnerable to challenges based on your incapacity. There are also a number of ways to demonstrate that you are of sound mind and body at the time you are making a will. For example, a physician can perform an exam around the time your prepare the will and attest that you are mentally competent.

Claims of undue influence are harder to avoid, since they are based on the allegation that you prepared your will under the influence or through the interference of one or more beneficiaries. The most obvious case of undue influence, which experienced estate planning attorney will have witnessed many times, is when a friend or relative brings an elderly person to the lawyer's office and either tells the lawyer what the testator wants to do or exerts obvious pressure on the testator. The testator, the person for whom the will is prepared, is the attorney's client. My duty is to protect my client. Therefore, I generally insist that I meet with my client at length and in private, with none of their relatives or beneficiaries present. However, not all undue influence is as easy to spot as the cliché visibly greedy beneficiary who tells the testator what to do.

Florida courts have defined undue influence as "over-persuasion, duress, force, coercion, or artful or fraudulent contrivances" that compromise the testator's free agency in making estate planning decisions. "Contrivances" can include misleading the testator about another heir as a way of affecting a will without any obvious coercion.

When two people are in a confidential relationship, and one prepares a will or trust that benefits the other, the circumstances can create a presumption of undue influence that you must then disprove to defend the will. A confidential relationship is a close, personal bond between two people; in the probate context, it is one where the relationship between the testator and the beneficiary was one of trust and confidence. For example, a son who sees his mother daily and takes her to her appointments may enjoy a confidential relationship with her. Most of the time that is a healthy human bond. However, when a confidential relationship is used to influence another's bequests, it is undue influence and can cause those bequests to be invalidated in probate litigation. 

The Takeaway

Will contests can lead to traumatic emotional burdens for surviving family members and impede your wishes from being carried out. Therefore it is essential to work with an attorney who can help ensure the validity of your will. In addition, he or she can advise you about a number of estate planning tools, such as trusts, that can help to prevent unnecessary disputes.


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