Estate & Trust Litigation

There are many circumstances where a beneficiary who has been wrongfully deprived of his or her inheritance can recover what is rightfully theirs. The procedures usually involve attacking the will or trust which deprived the beneficiary of their inheritance. In addition, gifts made before death can be overturned if procured by fraud or undue influence.

Grounds for Contest of a Will

A will can be declared invalid in whole or part.

1. Lack of Testamentary Capacity

It is generally held that, to execute a valid will in Florida , the decedent need only have the ability to understand, in a general way:

• the nature and extent of the property to be disposed of ; and
• his or her relationship to those who would naturally claim a substantial benefit from his or her will (i.e., the "natural objects of his or her bounty"); and
• a general understanding of the practical effect of the will as executed.

The burden of proving lack of testamentary capacity is upon the party filing a will contest and must be sustained by a preponderance of the evidence.

2. Undue Influence

Undue influence is one of the most common grounds for attempting to set aside a last will. In Florida , a presumption of undue influence will arise, if the contestant can show that the alleged undue influencer

• is a substantial beneficiary under the will, and
• occupied a confidential relationship to the decedent, and
• was "active" in the procuring" the will

In 2002, the Florida legislature amended Florida Statutes §732.107 (2) to provide that once the presumption of undue influence is established it has the effect of shifting the burden of proof to the proponent of the will to prove lack of undue influence. This is a significant Change from the prior law.

Under Florida Statutes §733.107(2), the presumption of undue influence now has the effect of shifting the burden of proof to the proponent of the will to prove that the will was not the product of undue influence.

3. Mistake

That a will procured by a mistake is void. The mistake necessary to set aside the will must be what is called a “mistake in execution”. For example, the testator executed a will believing it to be another document. Neither a mistake of fact (also referred to as a mistake in the inducement) nor a mistake in the contents of the will is sufficient to invalidate a will.

4. Insane Delusion

As set forth above, a mistake of fact is not enough to set aside a will. However, if the mistake of fact rises to the level of insane delusion, the will can be set aside. An insane delusion is a form of incapacity based upon the contention that the testator's will was the product of a diseased mind that caused the testator to reach a mistaken conclusion having no basis in fact. The Florida Supreme Court has defined insane delusion as fixed false belief "without any evidence of any kind to support it, which can be accounted for on no reasonable hypothesis, having no foundation of reality."

5. Fraud and Duress

The fraud to set aside a will can be either in the execution of the will or in the inducement to make the devise. Fraud in the execution occurs when the testator is told that the document he or she is signing is something other than a will. Fraud in the inducement occurs when the testator us intentionally misled by a material fact, which caused the testator to make a different devise than he or she would have otherwise made. Duress involves some threat of physical harm or coercion practiced upon the testator.

6. Failure to Execute with the Required Formalities

Florida Statutes §732.502 sets forth the formalities necessary to execute a valid will in Florida. The required formalities are as follows:

• the will must be signed by the testator, or the testator's name must be subscribed by another person in the testator's presence and by the testator's direction; (the testator must sign at the end of the will)
• in the presence of the witness, and
• there must be at least two attesting witnesses; and
• the witnesses must sign the will in the presence of the testator; and
• the witnesses must sign the will in the presence of each other.

Any will, other than holographic or oral will, executed by a nonresident of Florida , is valid in Florida if it is valid under the laws of the state or country where it was executed.

7. Revocation of a Will

A will can be revoked in Florida by a subsequent validly executed inconsistent will or codicil, Florida Statutes §732.505, or by physical act of the testator, or another person in the testator's presence and at the testator's direction, such as burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation. A testator cannot revoke a portion of the will by physical act. An attempted partial revocation by physical act is invalid.

When a will, which is known to be in the possession of the testator, cannot be found after the testator's death, a presumption arises that the will was destroyed by the testator with the intention of revocation. The presumption may be overcome by proof that persons with an adverse interest in destroying the will had an opportunity to do so.

Standing to bring a Will Contest

Who can sue to overturn the will or trust?

Florida Statutes §733.109 provides that any "interested person" may petition for revocation of probate of a will. An interested person is defined under the Florida Statutes § 731.201 as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.

1. Heir-at-law

An heir at law (a person would take if no will existed) generally has standing to contest a will. However, if there are prior wills that exclude the contestant, the contestant must also prove that the prior wills are invalid or that the doctrine of dependent relative revocation does not apply.

2. Beneficiary and Personal Representative under Prior Will has standing to contest a will in Florida.

Proper Parties in will or trust contest

Pursuant to Florida Statutes §733.109(1)(b), formal notice of the petition must be given to the personal representative and all interested persons. This would include all beneficiaries under the intervening wills that are being challenged.

Time for Contests

The time frame within which a petition for revocation of probate and/or objection to the petition for administration must be filed depends upon the method in which an individual or entity was provided with notice of the probate proceedings.

Fees and Costs – Who pays?

A successful will contestant can generally recover their fees and costs from the assets of the estate pursuant to Florida Statutes §733.106 and the Florida Common fund rule.

Trust Contests

The principals of standing and grounds for contesting trusts are generally the same as those for contesting a will.

Time for Trust Contests

Florida Statutes §737.206 provides that an action to contest the validity of all or part of a trust may not be commenced until the trust becomes irrevocable. The time limits within which a contestant must challenge a trust after the trust becomes irrevocable are, in this author's opinion, uncertain in Florida . It appears that the four or five year statute of limitations set forth in Florida Statues §95.11 most likely to govern. In any event, most practitioners would agree that an inter vivos trust can be contested well after the time for contesting a will has already run.

Fees and Costs in a Trust Contest

A successful trust contestant can generally recover their fees and costs from the assets of the trust estate pursuant to Florida Statutes §737.2035.

Interference with Expected Gift or Bequest

1. Elements

Florida recognizes a cause of action for tortious interference with an expected inter vivos or testamentary gift or bequest. The plaintiff in a tortious interference case must prove that the decedent had a fixed intention to leave a portion of his or her estate to the plaintiff and a strong probability existed that the decedent would have carried out his or her intention but for the wrongful acts of the defendant.

2. Plaintiff Must Have No Adequate, Alternative Remedy

Florida courts hold that a plaintiff can only bring an action for tortious interference with a will if he or she has no adequate remedy in probate. If the plaintiff could have obtained the relief being sought in probate by successfully attacking the decedent's will, the plaintiff cannot maintain an action for tortious interference for loss of the expectancy under the will. However, the failure to successfully attack the will, will not preclude the plaintiff from seeking damages for loss of inheritance caused by circumstances that do not involve the invalidity of the will.

3. Remedies

The remedies available in a tortious interference action include damages and/or the imposition of a constructive trust upon the fraudulent gift.

4. Pre-Death Transfers

Transfers made by the decedent prior to death are voidable on the grounds of fraud, duress, mistake, undue, and lack of capacity.

Trust and Accounting Actions

A. Beneficiaries' Right to Information

Pursuant to Florida Statutes §737.303, all beneficiaries of an irrevocable trust, including current income and principal beneficiaries and reasonably ascertainable remainder beneficiaries, are entitled to complete copy of the trust instrument and all relevant information relating to the assets of the trust and particulars relating to administration. To protect the privacy interests of a grantor while he or she is alive, the beneficiaries of a revocable trust, other than the grantor of the grantor's representative, are generally not entitled to a copy of the trust document or trust information relating to the administration of the trust.

B. Beneficiaries Right to an Accounting

In addition, beneficiaries of an irrevocable trust are generally entitled to an accounting at least annually. See Florida Statutes §737.303(4) (a). Florida Statutes §737.3035 sets forth the information, which must be included in all accountings rendered after January 1, 2003 . Beneficiaries of a trust also have a common law right to demand an accounting from the trustees of a trust. As a matter of public policy, the right to an accounting is not capable of being waived by the settlor in the trust instrument.

C. Limitations of Trust Accounting Actions

The new Florida Statutes §737.307, which is effective for all accounting periods commencing on or after January 1, 2003 and to all written reports received by a beneficiary on or after January 1, 2003, sets forth three separate limitation periods depending upon the disclosures made in the accounting and the notice provided.

Florida Statutes §737.307 provides that a beneficiary who receives a "trust disclosure document" adequately disclosing the matter is barred from bringing action against the trustee unless a proceeding to assert the claim commenced within 6 months after receipt of the "trust disclosure document" or the "limitation notice" that applies to the trust disclosure document, whichever is later.

All claims against a trustee who has issued a "trust disclosure document" adequately disclosing a matter but who has not delivered a limitation notice are barred as provided in chapter 95. Fla. Stat.§737.307(1).

Notwithstanding lack of adequate disclosure or delivery of a limitation notice, all claims against a trustee who has issued a final trust accounting and who has informed the beneficiary of the availability and location of the records are barred as provided in chapter 95. Fla. Stat. §737.307(1).

D. Fees and Costs

Fees and costs may be awarded to a trust beneficiary who provides a benefit to the trust estate in connection with an accounting pursuant to Florida Statutes §737.2035. Further, Florida Statutes §737.627 provides that, in all actions challenging the proper exercise of the trustee's powers, costs, including attorney's fees, shall be awarded as in chancery actions.