As medical science allows our bodies to be kept alive long after our minds function as when we were young and healthy, family members and others may see an opportunity to adjust an elderly person’s estate plan more to their liking. When other family members, not involved in the change to the estate plan, learn of the changes, they may wish to contest the will on the grounds of undue influence, lack of capacity, or failure of the will to conform to the requirements of law. A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the creation of the will can be gathered and preserved for subsequent litigation. After death, the Personal Representative will issue a Notice of Administration to the heirs and beneficiaries, which starts a 90-day period for challenging a will or the appointment of the Personal Representative.

Proper execution of a will requires that the will be signed by the deceased and witnessed by two witnesses, who also sign the will at the same time as the deceased. A will can be contested on the grounds that it was not properly signed or witnessed, and Florida courts have declared wills to be invalid that were not witnessed properly, including a situation where one witness was in an adjoining room when the will was signed and not in the immediate presence of the maker of the will.

Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, hallucinations, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the testator around the time the will was executed or perhaps that the testator was on heavy medication. As a practical matter it is difficult to challenge a will on lack of capacity grounds without a definitive medical diagnosis of a mental problem or without substantial proof of the drugs or medication that the testator was taking.

A will can be challenged on undue influence grounds when the testator was compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will (especially if the other children are stepchildren). Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker. Please read the Estate of Carpenter case, which is the most important undue influence case in Florida.
Even with evidence of significant pressure or cajoling from a spouse, Florida courts are reluctant to overturn bequests to a surviving spouse under an undue influence claim, given the importance of marriage in our society. Nonetheless, an egregious set of facts could warrant striking of a bequest to a surviving spouse, although the surviving spouse will be entitled to the elective share (30% in Florida), absent a valid marital agreement to the contrary.

Almost all will contests are heard by the probate division of the circuit court, where jury trials are not permitted. Florida does not recognize “no contest” clauses in wills or trusts. In any litigation in Florida over a will or trust, such a clause will be ignored.