Helping You Contest Wills And Trusts
Wills and trusts are common tools of estate planning, but not all are created equal. Sometimes, a will or a trust is drafted under circumstances that render their contents invalid. If you believe this to be the case, you must file an action to challenge the will or trust. There are several grounds on which a will or trust may be contested including undue influence, the lack of capacity and fraud.
A will must be challenged in the probate court where the will is being probated. If the will has been admitted to probate by the order of the court, the will contest is initiated by the filing of a petition for the revocation of the probate. If the will has not been admitted to probate, the will contest is initiated by an objection to the admittance of the will to probate. There is a strategic difference in contesting a will which has already been admitted to probate and contesting a will prior to its admittance to probate. There are also deadlines which may limit your ability to contest a will after it has been admitted to probate. Although a will cannot be challenged before the death of a decedent, it is important for you to consult with an experienced probate litigator prior to the death of the decedent or soon thereafter to protect your interests.
Trusts, being more complex, have more complicated rules. However, the legal grounds to contest a trust are the same as a will contest. A trust is created by a grantor (also referred to as the settlor). The grantor appoints a successor trustee to administer the trust in the event of the death or incapacity of the grantor. Although a will contest is filed in a probate proceeding, the trust contest is filed as a civil action. However, the probate deadlines may also limit your ability to contest the trust as well as other limitations imposed by the Florida Trust Code. The successor trustee has certain duties in the administration of the trust. If the successor trustee fails to comply with those duties, the successor trustee may be removed through trust litigation and held personally liable for a breach of trust.
The attorney representing your interests in a will or trust contest must not only possess the knowledge and experience to navigate through the probate and trust codes, but the attorney must also be a skilled litigator. Oftentimes, these proceedings involve other types of probate and trust disputes and assets that may not be included in the probate estate or trust such as retirement plans, annuities, insurance policies and accounts that pass to a person outside of probate or a trust. At Lyons, Beaudry & Harrison, our team has decades of experience to assist you in a will or trust contest as well as other inheritance disputes, resolve the dispute or fully litigate the dispute in court, if necessary.
Legal Grounds For Contesting A Will In Florida
Under Florida law, no one is allowed to contest a will until its creator has died. Often, it is not possible to even see the will until this happens, and the probate process begins. Contesting a will occurs in probate court as part of the probate administration of the deceased person’s estate. Generally, you have 90 days to file a will contest but can be as little as 20 days if you receive what is called a “Formal Notice” with a Petition for Administration. These quick deadlines are one reason to hire a skilled probate litigation attorney to help you determine the legal grounds for a contest and file your will contest before the limitation period expires.
There are a number of legal grounds on which you can contest a will, including
- Lack of proper formalities – For a will to be valid, it must be signed by the testator and observed by two witnesses who also sign it.
- Undue influence – If the person creating the will, the testator, is compelled to create or change a will so that it favors someone who is considered to have influence over the testator, that undue influence may render the will invalid. This is most common in the case of family and friends who want a larger share of the estate, especially those in a caretaker role who gains the confidence of a testator with diminished mental capacity.
- Lack of capacity – A person who creates a will must have testamentary capacity. A testator must have the mental ability to understand, in a general way, the nature and extent of the property to be disposed of and his/her relation to those who would naturally claim a substantial benefit from the will. The testator must also have a general understanding of the practical effect of the will as executed. There are degrees of mental unsoundness or mental weakness, and not every degree of mental unsoundness is sufficient to destroy testamentary capacity.
- Fraud – This occurs when the person creating the will is lied to during the drafting of the document. This typically occurs when testators are not told that they are signing a will or when an individual lies about the information the person relies upon to make the will.
Legal Grounds For Contesting A Trust In Florida
A trust may be invalidated for all the same reasons as a will. The proceedings for the contesting of a trust are the same as for a will, except that the contesting of a trust is a civil matter. Often times the will contest and trust contest are combined into one proceeding.
You may be limited to six months after the death of the grantor to file a trust contest. Because many times the trust is also a beneficiary of the will, the deadlines to file a will contest may apply to the trust contest. The help of a skilled litigation attorney who is an expert in wills, trusts and estates can assist you in determining whether to file the trust contest or other trust litigation.
Make An Appointment With An Attorney With The Skills And Knowledge To Contest A Will And Trust Today
We have been helping our clients contest wills and trusts throughout the Gulf Coast area including Sarasota, Bradenton, Venice, Lakewood Ranch and the other communities of Sarasota County and Manatee County for over 50 years. If you need to contest a will or trust, or need assistance with any type of probate and trust litigation, or inheritance dispute contact us at Lyons, Beaudry & Harrison today for a consultation. You can reach us by phone at 941-366-3282 or contact us online. We are conveniently located at the corner of Main Street and Orange Avenue, in Sarasota, Florida.