Marc J. Soss, Esq. | (941) 928-0310
​2070 Ringling Blvd., Sarasota, FL

FLORIDA WILL CONTEST - CARPENTER STANDARD:

A presumption of undue influence arises when it is demonstrated by the person contesting the will that the individual alleged to have unduly influenced: (i) occupied a confidential relationship with the testator; (ii) was a substantial beneficiary under the will; and (iii) was active in procuring the will. Active procurement can be shown regarding seeking a will when various factors are proven to have occured.

The Carpenter case, which the Florida Supreme Court decided in 1971 established the following factors to examine: (i) The presence of the beneficiary at the execution of the will. (ii) The presence of the beneficiary on during which times the testator expressed the desire to make a will. (iii) The beneficiary of the will recommending an attorney to draw the will. (iv) The beneficiary having knowledge of the contents of the will prior to the testators execution of it. (v) Instructions regarding preparation of the will by the beneficiary to the attorney preparing the will. (vi) The Beneficiary obtaining witnesses for the execution of the will. (vii) Maintaining the will by the beneficiary after the execution of the will. If multiple of these situations are demonstrated to have occured the presumption that the will was procured by undue influence may arise. When the presumption arises the beneficiary is required to then show a reasonable explanation for their active role in procuring the will. If the beneficiary cannot provide a reasonable explanation of his or her active role in the procurement of the will, this alone is sufficient to find undue influence. If the beneficiary can come forward with a reasonable explanation, then the person contesting the will must go forward with evidence that the will was procured through undue influence.

NO-CONTEST CLAUSE

Pursuant to Florida Statute 732.517, a provision in a will seeking to prevent a Florida Will Contest is not enforceable. Florida Statute 732.517 states this. This is done as a matter of public policy.

A Florida Will Contest is a formal objection against the validity of a will contesting it does not reflect the intent of the testator (the person who made the will). A will may be challenged, disputed or contested in its entirety or only in part. An individual involved in a Florida Will Contest or Florida Probate Litigation matter typically has either 90 days after receiving the notice of administration from the personal representative handling the Florida probate matter or if they receive formal notice of the probate in advance of admitting the will to probate the time period for contesting the will can be cut to 20 days from the date of service.

FLORIDA PROBATE LITIGATION - METHODS TO ATTACK/ CHALLENGE A FLORIDA WILL: A Florida Last Will & Testament can be challenged for numerous reasons. Among the basis include: (i) Undue Influence; (ii) Lack of Capacity; (iii) Lack of Proper Formalities; (iv) Fraud; (v) Duress; and (vi) Coercion.

Undue Influence: A claim of "undue influence" can be alleged when the testator executes the document as a result of improper pressure (typically from a family member, care giver, friend, etc.). The allegation can usually be substantiated when a long-standing estate plan is radically changed with different beneficiaries receiving the bulk of the decedents estate.

Lack of Capacity: Under Florida law, the individual signing a Florida Last Will and Testament ("Will") must possess the mental capacity to create the document, understand the nature and value of his/her assets, and the people to whom they are leaving their estate at death. A Will can be challenged on the basis that the signor lacked mental capacity at the time it was executed.

Lack of Proper Formalities: Proper execution of a Florida Last Will and Testament ("Will") requires the Will to be executed in front of two witnesses (who are able to acknowledge that the testator signed the document as their Will). The document may be challenged on the basis that it was not properly drafted, signed or witnessed.

Fraud: This occurs when the testator is fraudulently induced into signing an estate planning document which does not reflect their true intent.

Duress / Coercion: When an unlawful threat or pressure forces an individual to sign an estate plan that they would not have otherwise executed.

SURVIVING FLORIDA SPOUSE ENTITLEMENTS: A surviving Florida spouse has an entitlement to the following: (i) the right to "homestead real property" (or at least a life estate in the decedent's residence), (ii) the right to an "elective share" (30% of the decedents estate), (iii) the right to take as a "pretermitted spouse" (under Florida intestacy law), (iv) the right to a "family allowance," (v) the right to "exempt property," and (vi) priority in preference in serving as the Personal Representative of the Florida decedent's estate. In many cases, probate litigation must be commenced to ensure the surviving spouse receives everything they are entitled to under Florida law.

ELDER ABUSE: Additional methods to challenge a testamentary document include: misuse or abuse of a power of attorney, fraudulent procurement of lifetime property transfers, and breach of fiduciary relationship. Type your paragraph here. Type your paragraph here.

SARASOTA FLORIDA PROBATE LITIGATION

Inheritance Dispute | Will Contest | Beneficiary Fight |

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Florida Probate Litigation is the legal process under which an individual (beneficiary, disinherited family member, etc.) contests or disputes the administration of a Sarasota or Manatee County Florida residents probate estate proceedings. The basis for the contest or dispute can be an allegation of undue influence, lack of capacity, duress, fraud, lack of proper formalities, ...