Often, due to people taking advantage of their access to estate or trust assets through bad conduct or otherwise, legal action including estate litigation may be necessary. Unfortunately, the people in positions of trust, whether they are acting as a estate executor, trustee, or other individuals with access to the assets, can easily create issues. There are numerous ways in which the probate process can be abused, such as fraud, mismanagement of assets, and even human error, that can create financial disasters and harm family relationships. These situations can lead to a will dispute, trust contest, estate litigation or removal of a trustee.

Due to the personal nature of these issues, estate litigation is one of the most emotionally charged areas of the law due to the family dynamics involved and impacted by the matter. When such situations arise, the experienced attorneys at Boyer Law Firm are ready to fight to protect your rights.

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What Is Probate or Estate Litigation?

Probate litigation, also known as estate litigation, is a term used to refer to a lawsuit filed in court to resolve disputes involving the administration of an estate.

What Is A Will Contest?

Among the most common disputes involving estate litigation is a challenge to the deceased person’s last will and testament seeking to invalidate it.

A will contest action is filed by someone who disagrees with some aspect of the will. It could be on the grounds that the will was not properly endorsed, another more recent will exists, allegations of undue influence or that the testor did not have the legal capacity to sign the will.

Who is Eligible to Contest a Will or Trust in Florida?

To challenge a will in Florida, the individual must have legal standing. Generally, any person with interest in the estate or an individual with a potential stake in the deceased individual’s estate will have legal standing to challenge the will. This includes anyone interested in the welfare of an incapacitated person, such as a minor. Legally, however, only a person – not an entity such as a charity, has legal standing to contest a will.

There is a strict deadline for filing a challenge to the administration of a will, which is generally 90 days after the filing of a notice of administration.

Grounds For Contesting A Will

Simply being surprised by the will’s contents is not enough to challenge the will as there are limited grounds available to do so. Most of the permissible challenges involve issues with the form and are relatively straightforward. Some of these grounds include:

  • Invalid Will – A will that was not executed in accordance with specific criteria as specified under Florida law, such as the requirement that the will is signed by the testator. Florida Statute §732.502 defines the execution requirements for a will to be valid in the State of Florida.
  • Mistake in Execution – Basically, the assertion that the testator signed the wrong document or was unaware of the type of instrument he was singing.
  • Lack of Testamentary Capacity – An assertion that at the time the will was executed, the testator did not have the requisite mental ability to understand 1) the nature and extent of his property (what his/her assets are and situation of same); 2) the person who were the natural objects of his bounty (individuals who would ordinary receive such property); and 3) the effect of the disposition he/she was making (how the property would be disbursed). As such, this type of challenge will typically involve the testators’ irrational conduct prior to the execution of the will in addition to their medical records.
  • Undue Influence – An allegation that a third party mentally or physically coerced the testator, typically a party with whom the testator had a close relationship, with the intent to assert his or her benefit under the will. The challenge essentially states that the testator would not have executed such will for the undue influence of the third party. There is a presumption under Florida law of undue influence when the third party actor was a substantial beneficiary under the will, had a close relationship with the testator, and actively procured the will.
  • Fraud in the inducement – is a knowingly false statement or representation that causes the testator to include terms or bequeaths that he/she otherwise would have made. In other words, when the testator was misled into believing something that wasn’t true and made a different will than they would have made.
  • Fraud in the execution – This type of claim asserts that the testator was deceived into signing or writing a will. For example, a person tricks the testator into signing a last will and testament under the guise that it is a “thank you” card.

Timing and Procedure For Contesting A Will

It is imperative to act quickly. Florida law provides ninety (90) days for a claimant to file with the court. There is no additional time to consider your options, discuss with an attorney, discover, or gather supporting documents, and formally filing in court. However, if a formal Notice of Administration has been provided prior to the will being admitted, that time is shortened to a mere twenty (20) days. 

There are some exceptions to the deadline, such as when the probate action has been concealed. Otherwise, most interested parties will be precluded from filing once the deadline passes. Therefore, you should speak to an experienced probate attorney as soon as possible even if the deadline is near or has expired. In limited situations, petitions are allowed to be filed past the deadline. A skilled estate litigation attorney can advise you of your legal options.

When an interested party wishes to contest a will, they do not file a separate lawsuit but rather file a petition in the probate court in the existing case. Essentially they will be turning the probate action into an adversary processing and requesting that the will be deemed invalid, in whole or in part, or requesting that the court will revoke the will due to undue influence, fraud, or duress.

As the petition is an adversarial process, the litigation will pursue as would any other lawsuit. All parties will be required to follow the rules of court, procedural rules, and substantive law. As stated below, there are hard and fast deadlines in Florida for contesting a will. Therefore, if you wish to contest a will, it is generally in your best interest to consult an experienced probate and estate attorney before taking any action.

What Are The Possible Outcomes Of Contesting A Will?

Several possible outcomes can occur, depending in large part on the grounds alleged to challenge the will. When a will is contested, and you are successful, the will may be:

Found invalid, in whole. Generally, if the decedent had a prior executed will, that previous will can be reinstated. If the decedent did not have a prior will, the estate will be distributed according to Florida’s intestacy laws.

Found invalid, in part. A portion can be found invalid and the decedent’s assets will be distributed according to the remaining clauses. Deemed invalid or unenforceable in part, in which case the remaining provisions will be carried out.


Risks Associated with A Will Contest

While many people are concerned with challenging a will due to a present “no contest” provision in the Will, Florida law does not recognize such clause and will not uphold it. As such, any interested person who challenges a will in Florida, whether successful or not, will remain entitled to whatever he or she was given pursuant thereto. In other words, a contest will not exclude them from inheriting from the Decedent.

Other Causes of Action in Probate or Estate Litigation

Florida law recognizes several additional bases for litigation involving probate, such as:

  • Will Construction – This is an adversarial action to determine the meaning of a will as not all wills are clear or allow for the plain meaning to materialize. For example, sometimes beneficiaries are no longer alive and/or can be identified. There are also instances where the will deposes of assets that are no longer an asset and/or that contradicts another clause in the will. As such, the interested party needs the court to determine how the estate should be distributed.
  • Determination of Heirs – This action generally occurs when the will is unclear, or the property passes by intestate succession (when the decedent passes without a valid will). Pursuant to Florida Statute 733.105, the court will determine who is entitled to receive from the estate and the shares and amounts they will receive. Sometimes, the decedent has children, who wish to prove paternity/maternity and make a claim in the estate.
  • Elective Share Litigation– Much like other states, Florida law has an Elective share statute (Fla. Statute 732.101), to ensure the spouse is not disinherited, absent a valid agreement to the contrary. A spouse has the right to elect to take under this statute, which is generally 30% of the “elective estate” or take according to the will (or intestacy if there was no will). The elective estate is different than the probate estate and includes such assets “Payable on Death” accounts.
  • Breach of Fiduciary Duty – This can occur when the person responsible to administer the estate, acts in their own benefit, and not in the deceased’s best interests. Failure to properly administer an estate, whether by an overt act or by omission, can be actionable, including but not limited to removal of the fiduciary. Florida Statute §733.601-619 lists the duties and powers of a personal representative.
  • Surcharge action: When the funds have been wasted or mismanaged by a personal representative, a surcharge action can restore the losses to the estate.
  • Accounting – Under Florida statute 733.604(1)(a)(4), any interested person has the right to an estate accounting when requested. If one has not been provided, then the party may request the accounting from the clerk of court’s or if accounting has not been filed, the party may seek the court’s assistance to compel the personal representative to provide the accounting. It is also possible to object to the accounting within 30 days of receipt of the final accounting if anything is problematic. .
  • Tortious Interference with an Expectancy of Inheritance or Gift –This is a relatively new cause of action in Florida, having only been recognized since 1966. This claim is designed to protect the deceased person’s intent. It is used to help a beneficiary who has been wrongfully deprived of his or her rightful inheritance by the tortious acts of a third party. In other words, this action will help restore the intended beneficiary’s claim had the third party not interfered with their wishes. This action is only available when there is no other remedy available in probate court.

Florida Trust Contest And Litigation

Trusts have long been used to make things easier on beneficiaries and to avoid probate court. Unlike a Will, a Trust takes effect as soon as it is created and can be used to distribute property before or after death. Most trusts are drafted to ensure little if any assets are left in the estate that would be subject to probate, and thus probate court would be avoided. However, some trusts are created similar to a Will, and takes effect as soon as it is created and can be used to distribute property before or after death. While trusts can be a great way to save beneficiaries time, court costs, and attorney’s fees, there is no guarantee that litigation or a trust contest will be avoided entirely. This is especially true, like probate, a court oversees the process, including how the assets are distributed, a trust passes outside of probate and outside the courtroom. Despite a well-drafted trust document, legal issues can and do still arise, such as the purpose of the trust no longer being viable or the trustee’s wrongful actions.

Challenging a Trust in Florida

In another form of estate litigation, any interested person may file a trust contest on anyone, or a combination thereof, of the grounds available. The causes of actions are very similar to what you would see in probate court, including:

  • Undue Influence – A trust contest using the assertion that the person making the trust (the settlor) was mentally or physically coerced by a third party, typically a party with whom the settlor had a close relationship, with the intent to assert his or her benefit under the trust. The challenge essentially states that the settler would not have executed such trust for the undue influence of the third party.
  • Lack of Capacity – An assertion that at the time the trust was executed, the settlor did not have the requisite mental ability to understand 1) the nature and extent of his/her property (what his/her assets are and situation of same); 2) the person who were the natural objects of his bounty (individuals who would ordinary receive such property); and 3) the effect of the disposition he/she was making (how the property would be disbursed). While this standard may seem high, it is not as high as general competency. This type of challenge will typically involve the settlers’ medical records documenting such conditions as dementia or evidence showing the settler’s irrational conduct prior to the execution of the trust.
  • Mistake in Execution – Pursuant to Florida Statute 736.0403, all revocable trusts must be executed with the same formalities as are required to execute a will. If there is any mistake in following this, a trust contest can result in the trust being deemed invalid.
  • Trust Modification– Sometimes, after a trust is executed, the language of the trust is confusing, contradictory, or simply ambiguous. When these situations arise, an interested party can petition the court to enter an order to revise or reform the terms in the trust. If the beneficiaries are unable to agree, a petition may need to be filed. Then a judge will rule on whether Florida laws will allow the trust to be revised or reformed, even after the Grantor’s death.
  • Trust Termination – Sometimes, the purpose of a trust fails and is now wasteful or impracticable to fulfill its purpose.

Challenging the Trustee’s Actions – Breach of Fiduciary Duty

Most trust contests are centered on the actions and omissions of the trustee. These disputes involve the person appointed to oversee the trust, the trustee, and allegations that they did not administer the trust appropriately, such as:

  • Breach of Fiduciary Duty– Every Trustee has duties and responsibilities according to Florida Statute 736.0801-736.0817. Failure to carry out these duties can be actionable. Such actions or remedies can include removing the trustee or a surcharge action, as discussed above, to recoup wasted or mismanaged assets.
  • Accounting – A trustee must adequately inform and account to the beneficiaries of the trust. If such accounting has not been provided, the trustee may be in breach of trust, and a beneficiary can request the Courts to compel the trustee to provide the information and accounting.

Removal of a Trustee

Much like any other job, a trustee can resign at any time. Resignation of a trustee may occur either with court approval or by providing a 30-day notice to all qualified beneficiaries and co-trustees or the settlor of the trust. Pursuant to Florida Statute 736.0706, if all eligible beneficiaries agree, a trustee can be removed. However, the beneficiaries must show that removal serves everyone’s best interest, and there must be another trustee available to take over.

Pursuant to Florida Statute 736.0706, a trustee can be removed upon showing any enumerated statutory grounds for removal, such as a breach of trust or persistent failure to effectively administer the trust.

Alternative Action to a Trust Contest

Like other states, Florida law now permits interest parties to deal with trusts and to dissolve trusts without involving the courts.

  • Settlement Agreements – (Florida Statute §736.0111) Interested parties in a trust dispute may enter binding settlement agreements regarding virtually any trust manner as long as not otherwise prohibited. Typically, this type of resolution is far superior than lengthy litigation, when a fair and equitable agreement can be reached.
  • Trust Modification– (Florida Statute §736.0412) There are times when a trust contains confusing language or is outright contradictory. When such mistakes or ambiguities are discovered, they can often be resolved through simple modification or reformation of the trust.
  • Trust Termination – (Florida Statute § 736.0414) When a trust is no longer financially viable to justify the cost of administration and is overall worth less than $50,000.00, a trustee can terminate the trust on his/her own accord.

Don’t Know If Your Dispute Has Merit?

You may not understand every facet of your trust contest, estate dispute, or will contest case or how the law might apply to your loved one’s will. Still, an experienced Florida Probate attorney at Boyer Law Firm, P.L. can evaluate your potential estate litigation case, answer your administration and dispute questions and help you consider your options. Give us a call.

Administration or Litigation Of Florida Estates And Trusts With Our Team Of Skilled Florida Probate Attorneys

If you are a personal representative or beneficiary of an estate, Boyer Law Firm can assist in actions such as estate litigation, a will dispute and a trust contest. As the personal representative, we ensure that you comply with the Florida Statutes and your fiduciary duties and provide proper notice to the other interested parties. Although the fiduciary is obligated to retain counsel, all interested persons have a right to counsel. We represent beneficiaries of estates either when there is litigation or when a beneficiary wants to ensure they understand the process and their rights.

If you believe you may have a Florida estate litigation, trust contest or will dispute matter and need to speak to a Florida Probate Litigation Attorney, please call the lawyers at Boyer Law Firm, P.L. to receive a case evaluation.

Offices in Miami, Orlando, and Jacksonville.