If you’ve met with an attorney to draft a will or set up an estate, then you’re probably familiar with them asking you if the wishes that you’ve expressed are being made of your own free will. The reason that they ask this is to make sure that you’re not under someone else’s “undue influence”.
Undue influence is essentially a formal way of describing coercion, persuasion, force or duress that a testator, or person drafting a will or other estate document, may be subjected to. If an “interested party,” or someone slated to benefit from the estate, can prove that a testator was heavily influenced to sign this document, then it may be thrown out by a probate judge.
Interested parties often don’t find out that they’re beneficiaries to an estate until they’re contacted and informed that they are by the executor of it. Florida law requires all beneficiaries, the testator’s surviving spouse and all revocable trust trustees to receive notice when a will is filed with the courts.
One of the reasons that wills generally only are contested after a testator’s death is because it’s only then that they’re made aware of how the chips are slated to fall.
Interested parties are given a limited amount of time to contest a will. A 2nd Circuit Courts of Florida judge recently gave one plaintiff a four-year statute of limitations to file. Some individuals have been longer.
In determining whether undue influence has occurred, a Melbourne judge will take into account how well-guarded the will or other testamentary document was kept after it was originally executed. They may want to know if the beneficiary knew of its contents as well.
They’ll also take into account whether the beneficiary was present or provided instructions when it was being drafted. They’ll also want to know about any of the testator’s wishes that they previously shared that may have either conflicted or substantiated the final wishes.
Interested parties can’t simply contest a will, beneficiary designation or trust because they were written out of them. Instead, they must provide the courts with proof that the testator lacked testamentary capacity or was under undue influence when it was drafted or signed. Contesting a will or resolving an estate dispute can be quite involved and should be handled by a trust litigation attorney who has extensive experience with such legal matters.
