Most persons assume that once they have a Will their final wishes will be carried out during the probate process. Or a beneficiary believes that once a Will is written then whatever it says goes. Well this may or may not be so. Several factors need to be looked at when determining if a Will stands or should stand or not. Like most things in the legal realm that are subject to being challenged, so is a Will.
I see that look of surprise……
In Florida, a Will or a Trust can be challenged for the following reasons:
- Lack of Proper Formalities-in simple language, the Will or Trust was not properly drafted, signed or witnessed. It could be any one of those, or a combination.
- Lack of Capacity-broken down, this means the person did not have mental capacity or it could be that they did not have legal capacity. Remember that a person who has legal capacity does not always have mental capacity, and the reverse is also true.
- Undue Influence-this is a very interesting challenge, and is oftentimes a big
area for challenge. Simply put, was the person writing the will (also known as the testator), forced, or coerced into writing the Will or Trust in the way it was written? It could be as simply as A leaving property to B, because A is dependent upon B for their care, and B demands that A leave them their property or else…..It may also not be so obvious, and so is always worth looking into.
- Insane delusion-this is where someone believes something that is not true, their belief is delusional. This could also possibly lead to a challenge of mental capacity as well.
- Fraud- in so many things in life, great old “Fraud” likes to pop up his ugly head, and so he/she does so even with Wills or Trust. Fraud is when the testator make changes to a Will or Trust based on a person’s misrepresentation. One way to remember this creature is think…lotto scam, which is just one of many ways in which fraud can occur.
These challenges are not limited to Wills and Trust, but can also be used in cases where there was a transfer of ownership of property or the designation of a beneficial on an account.
The beauty about Florida’s probate law is that it has removed the penalty of someone challenging a Will. Prior, it could be stated in a Will that if you challenge that Will, you lose your right to inheriting under the Will…but no more. Florida legislators realized the pitfalls, and made the appropriate challenges to ensure that such clauses are no longer valid. Therefore, if there is a valid reason to challenge a Will or Trust, do not hesitate to discuss with your attorney.