Probate is simply the process of distributing property as directed by the decedent in their Will, or in the event there is no Will, according to the default sequence
Most people understand that some level of mental capacity or rational thinking is necessary in order to legally execute documents such as contracts. The specific mental requirement to validly execute a Will is referred to as “testamentary capacity.” If you believe that the decedent executed a Will when he or she lacked testamentary capacity, you may contest the document as being void.
It’s typical of families that have loved ones suffering from dementia, Alzheimer’s or mental illnesses to believe that these types of diseases automatically prove that the decedent lacked testamentary capacity, but the mental competency required to execute a Will is much lower than that required for execution of standard contracts. It may not be intuitive, but certain people who aren’t competent to enter a regular contract with a third party, may still be determined to have the legal capacity to sign and execute a final Will. Not only is the standard lower, but the person executing the Will does not need to demonstrate a prolonged track record of mental competence. The testator (the person executing the document) simply needs to have a “lucid moment” during which he executes the Will with the required testamentary capacity by demonstrating that he understands the following elements:
- The nature and extent of his assets;
- Identify family members and other beneficiaries, as well as his relationship to those identified parties;
- Understand that he is executing a Will and how the Will distributes his assets
One of the best ways to proactively ward off Will contests based on a lack of testamentary capacity is to have the testator evaluated by a licensed psychologist immediately before executing the document. This option is recommended for people who have significant wealth, are suffering from some form of declined mental capacity, and are expecting conflicts between family members or potential beneficiaries.
Decedent Was Pressured into Making the Will
Undue Influence is another common challenge presented for invaliding a Will. In order to prove that undue influence occurred, you will have to show that a person who the decedent had trusted, abused that trust, and used it for their own benefit in order to become a beneficiary to the estate or trust. For example, if the decedent had a housekeeper that provided him assistance with every day needs as he became older, and the housekeeper threatened to quit if the employer did not provide a gift to her in his estate planning documents, this could amount to undue influence.
The controlling case law on this topic for Florida courts comes from the Estate of Carpenter. This case stipulates that the person claiming the undue influence must show that the decedent was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the Will or Trust.
The Florida Supreme Court provided seven criteria to help determine undue influence:
- presence of the beneficiary at the execution of the will/trust;
- presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;
- recommendation by the beneficiary of an attorney to draw the will/trust;
- knowledge by the beneficiary of the contents of the will/trust prior to its execution;
- giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- securing of witnesses to the will by the beneficiary; and
- physical possession of the will by the beneficiary after its execution.
The Will Was Not Executed Correctly
For a Will to be valid it must comply with formal Will requirements. For example, in Florida:
- The Will must be signed by the testator;
- This signature must come at the end of the document;
- The signature of the testator must be signed in the presence of two witnesses;
- The two witnesses must also sign the Will in the presence of each other.
New York, has an additional “publication” requirement, meaning the testator must declare that the document being executed is his last Will during the execution ceremony with the witnesses.
Although many Wills are drafted by an experienced attorney, some parties choose to utilize pre-written or template documents found online. Documents that have been printed from an online source and filled in by the decedent may be more difficult to defend or confirm proper execution in conformity with legal requirements. If a person has any significant wealth, or expects that his family members may create conflict over their portion of the inheritance, at a minimum he or she should consult an experienced attorney to draft and execute the Last Will and other estate planning documents.
A Will may be revoked by the testator during his lifetime and therefore, any copy of that revoked document provided at probate will be considered invalid. Revocation may be shown through a physical act of the testator, such as burning or tearing of the original document. Since the examination of the original Will is the only sure way to determine whether a revocation has taken place, the probate court requires that the original document be submitted to the court.
One very common issue that family members run into after the death of a loved one, is that they cannot locate the original version of the Will. Generally, there is no central depository where Wills are registered for safe keeping prior to the death of the testator. Often the original will is kept with the testator in a confidential location such as a safe-deposit box, but unless the family members are informed where to look for such documents, the original may be lost forever. Fortunately, the probate court does allow copies of the executed Will to be submitted to the court, but if the Will is challenged for any reason, the default assumption is that the non-existence of the original Will is evidence that the testator had intentionally destroyed and revoked the document. Submitting a copy of the Will requires additional substantiation in the form of a sworn statement by either a witness who was present at the execution of the original Will, or from the nominated personal representative attesting to the authenticity of the document. This sworn statement is referred to as an Oath of Witness, or Proof of Will.
If you have questions regarding the validity of a loved one’s Will at probate, it is important to seek the advice of an experienced probate attorney. The highly skilled Florida probate attorneys at the Walser Law Firm are happy to assist you with all your probate needs. Call our Florida office at (561) 750-1040 to schedule a consultation today, or fill out our contact form.