Will Contest - Grounds For Contesting A Will

Grounds For Contesting A Will

The most common grounds, or reasons, for contesting a Will are:

• Lack of disposing mind and memory or Testamentary capacity claims are based on the testator’s lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets and knew the natural objects of his bounty (his family). While it may seem that the Testator (the person who signed the Last Will and Testament) was incompetent or that the Last Will and Testament was the product of fraud, undue influence or overreaching. Lack of Mental Capacity or incompetence is typically proven by medical records, irrational conduct of the Decedent, and the testimony of those who observed the Decedent at the time the Last Will and Testament was executed.
• Insane delusion Insane delusion is another form of incapacity. Courts have defined it as a “fixed false belief without hypothesis, having no foundation in reality.” Hooper v. Stokes, 145 So. 855 (Fla. 1933). Other courts have expanded on this concept by adding that the fixed false belief must be persistently adhered to against all evidence and reason. In Re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983) In Florida, one of the most-often cited insane delusion is Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274 (Fla. 3d DCA 2006). In it, the decedent executed a new will in 2005 while in the hospital with severe pain and under the influence of a strong medication. She died the next day. The new will disinherited the caretaker and left the decedent’s estate to several charities. The caretaker asserted that the decedent was suffering from an insane delusion at the time the will was executed and that she thus lacked testamentary capacity. The decedent’s physicians testified regarding the medication that the decedent was taking and how it had changed her personality. A psychiatrist who saw the decedent opined that she was delusional when she stated that the caretaker had abandoned her and had killed her dog. To the contrary, witnesses and evidence supported the position that the caretaker visited the decedent in the hospital every day and the caretaker gave credible testimony that she was continuing to care for the dog. Accordingly, the court set aside the Will as invalid based upon insane delusion.

• Duress involves some threat of physical harm or coercion practiced upon the testator by the perpetrator which caused the execution of the Will.

• FraudThere are four (4) general elements of fraud: 1.False representations of material facts to the testator; 2.Knowledge by the perpetrator that the representations are false; 3.Intent that the representations be acted upon; and 4.Resulting injury

There are two primary types of fraud: Fraud in the Execution, for example, the testator was told the Will he signed was something other than a Will, and Fraud in the Inducement, for example,the testator is intentionally misled by a material fact which caused the testator to make a different devise than he would otherwise have made.

• Undue influence. Undue influence typically involves a trusted friend, relative or caregiver who actively procures a new will. For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution. In most states, including Florida, if the challenger of a will is able to establish that it was actively procured, the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence.

Some jurisdictions permit an election against the will by a widowed spouse or orphaned children. This is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property.