These are rare, but this scenario can occur: Florida has a “slayer statute” to address it. Should a named beneficiary kill the testator, Florida law prohibits the killer from inheriting the gifts left to them in the Will.
Florida law treats the beneficiary responsible for the death of the testator as if he/she had predeceased the decedent – so, the assets left originally to them Will instead go to other beneficiaries.
The slayer statute in Florida, Florida Statute §732.802, specifies this law as it applies to joint tenants and life insurance policy beneficiaries, as well. It also clarifies what happens in the event of an absence of conviction of murder: it is left to the court to decide whether the greater weight of evidence suggests that the killing was intentional and unlawful.
Florida law gives individuals the power to contest Wills in the cases of fraud, mental incapacity or undue influence. In Florida, you can challenge a Will within the statute of limitations before the probate is complete. Additionally, if the Will has not yet been submitted to the court, you may challenge it. If the Will has been admitted to probate court and you have been notified of the submission and probate administration, then you have three months to file paperwork challenging the Will. However, if you did not receive the notice, then you may file after more than three months have passed as long as the probate process has not been completed.
You are allowed to file a Will contest in Florida if you have evidence that the will is not representative of the decedent’s wishes. You are also able to contest a Will if you have proof of undue influence, incapacity, or fraud. Incapacity refers to a situation in which an individual did not have the mental capacity to understand the document they were signing, and undue influence refers to a situation in which the decedent was coerced or otherwise pressured into signing the Will.
For assistance regarding these matters, contact our office at 941- 906-1231 to schedule an appointment with one of our attorneys.
After you are served a notice of administration regarding a will, you have 3 months to contest the contents or validity of the will in the state of Florida. The objections to a will can be regarding the creator’s capacity at the time of signing, undue influence in the will’s signing, possible fraud, etc.
If you have questions about objecting to a will, contact one of our experienced estate planning and probate attorneys at (941) 906-1231.
Florida has laws that protect high net worth elderly individuals from exploitation through “deathbed” marriages. Deathbed marriages occur when an elderly, sometimes high net worth, individual enters into a marriage during the last days or even hours of their life. These marriages are commonly used to exploit the elderly and to attempt to claim their assets. Florida is attempting to protect true heirs from having their inheritance taken away by a new deathbed spouse through the “Spousal Rights Procured by Fraud, Duress, or Undue Influence” statutes. These laws require that it be proved that the deathbed marriage was entered into voluntarily by both parties for the deathbed surviving spouse to claim rights to life insurance policies and other assets. An interested party, such as a rightful heir, can also challenge a deathbed marriage within four years of the marriage.
If you know someone who was involved in a death bed marriage and want to know how it will affect your inheritance and the administration of your loved ones’ estate, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.
In Florida, trusts can contain provisions which describe situations in which a trustee should be removed and procedures for doing so. An example of a procedure that could be laid out to remove a trustee would be conducting a majority vote among beneficiaries. The courts may also choose to remove a trustee if the trustee has 1) committed a serious breach of trust, 2) co-trustees are uncooperative to an extent that interferes with the trust’s administration, or 3) all beneficiaries ask for the trustee’s removal.
If you have questions related to establishing a trust to ensure the trustee you designate can be removed in certain situations or believe a trustee should be removed in a certain case, contact Bach & Jacobs, P.A. at (941) 906-1231. We represent trustees and trust beneficiaries and can advise your regarding your rights and options.
Undue influence often involves a family member or friend coercing someone to add or remove beneficiaries from their estate planning documents in the last months of life or when their mental ability begins declining. In determining if undue influence was exercised, the court evaluates whether mental inequality, or a notable difference in mental sharpness of the elder and accused exploiter, existed at the time of contested will revisions.
Out of several circumstances under which a will could be contested in Florida, the simplest is the will was not drafted using the proper formalities. For example, if a will is not witnessed as per state requirements, it can be contested and thrown out.
Other grounds for contesting a will include:
If the writer is found to have lacked capacity at the time of its drafting.
Due to the testator being manipulated or exploited, especially during old age if “undue influence” occurs.
if the author of the will suffers “insane delusions” which cause them to change the beneficiaries of the will, such as if a person believes their husband has left them and decides to remove the husband from their will when in fact the husband visits his spouse every day.
If fraudulent activity occurs. For example, if someone lies about other family members or beneficiaries and these lies cause the slandered family member to be taken out of a will.
Wills must be contested very quickly, generally within 90 days of when the Personal Representative files and serves the Notice of Administration. It is also possible for other testamentary documents besides wills to be contested if the situations listed above apply.
If you have questions about whether a will can be contested or to ensure your estate planning documents will not be contested, contact our office at (941) 906-1231 to speak to an experienced probate attorney.
Babette: Both Fred and I have litigation experience, and unfortunately in elder law, even with good planning, sometimes you end up in court. Fred: The typical case is a gentleman passes away, and leaves substantially all of his assets to a person or persons other than his natural beneficiaries, and by natural beneficiaries we mean typically the children of the decedent. Many times, people, particularly elderly people, come under the influence of persons and are induced to leave portions of their estate to those persons. In many cases the elderly person did not fully realize what he or she was doing. In a typical case, someone will come into the office and say, “my goodness, this is my dad’s will. I hardly know this person! how could he have possibly left so much to so-and-so? Can you do anything about this?” And at that point, Babette takes over.
Babette: On the other hand, there are times when an elderly person knows exactly what they’re doing, and they intentionally disinherit an heir. We can get very involved in preparing that case for litigation, even while the testator is alive and preparing the will, because we anticipate that it might be contested at a later date and so we develop the case right then and there on the spot. Unfortunately, that’s not always the case, but we believe in a person’s right to leave their estate to who they choose. That is one of the liberties we have in the United States and in the Florida Constitution. In protecting the elderly that means protecting their freedom of choice. Not every state is the same.
Fred: In those types of situations, we will frequently videotape the person who is making the will. We will record the signing of the will, we will ask that person questions like, “who you are? Do you understand what you’re doing? Who are your beneficiaries? What is the nature and extent of your financial assets? How come you’re not leaving so much to so-and-so and how come you’re making a bequest to so-and-so?”
In other words, we have it all on tape, and when the person dies and if there is litigation, the judge and the jury and everyone else can see the person who prepared the will while they were alive, and can make a determination of whether they feel that person was competent, and they also hear right out of the person’s own mouth why they are or are not doing a certain thing with regard to the disposition of their assets. We have found that that videotaping can be very persuasive in a court of law.
