A Florida Last Will & Testament or Trust can be challenged for numerous reasons. Among the basis include: (i) Undue Influence; (ii) Lack of Capacity; (iii) Lack of Proper Formalities; (iv) Fraud; (v) Duress; and (vi) Coercion.
Undue Influence: A claim of "undue influence" can be alleged when the testator executes the document as a result of improper pressure (typically from a family member, care giver, friend, etc.). The allegation can usually be substantiated when a long-standing estate plan is radically changed with different beneficiaries receiving the bulk of the decedents estate.
Lack of Capacity: Under Florida law, the individual signing a Florida Last Will and Testament ("Will") must possess the mental capacity to create the document, understand the nature and value of his/her assets, and the people to whom they are leaving their estate at death. A Will can be challenged on the basis that the signor lacked mental capacity at the time it was executed.
Lack of Proper Formalities: Proper execution of a Florida Last Will and Testament ("Will") requires the Will to be executed in front of two witnesses (who are able to acknowledge that the testator signed the document as their Will). The document may be challenged on the basis that it was not properly drafted, signed or witnessed.
Fraud: This occurs when the testator is fraudulently induced into signing an estate planning document which does not reflect their true intent.
Duress / Coercion: When an unlawful threat or pressure forces an individual to sign an estate planning document that they would not have otherwise executed.
Florida Will Contest Standard - Carpenter Standard: A presumption of undue influence arises when it is demonstrated by the person contesting the will that the individual alleged to have unduly influenced: (i) occupied a confidential relationship with the testator; (ii) was a substantial beneficiary under the will; and (iii) was active in procuring the will. Active procurement can be shown regarding seeking a will when various factors are proven to have ocurred. The Carpenter case, which the Florida Supreme Court decided in 1971 established the following factors to examine: (i) The presence of the beneficiary at the execution of the will. (ii) The presence of the beneficiary on during which times the testator expressed the desire to make a will. (iii) The beneficiary of the will recommending an attorney to draw the will. (iv) The beneficiary having knowledge of the contents of the will prior to the testators execution of it. (v) Instructions regarding preparation of the will by the beneficiary to the attorney preparing the will. (vi) The Beneficiary obtaining witnesses for the execution of the will. (vii) Maintaining the will by the beneficiary after the execution of the will. If multiple of these situations are demonstrated to have occured the presumption that the will was procured by undue influence may arise. When the presumption arises the beneficiary is required to then show a reasonable explanation for their active role in procuring the will. If the beneficiary cannot provide a reasonable explanation of his or her active role in the procurement of the will, this alone is sufficient to find undue influence. If the beneficiary can come forward with a reasonable explanation, then the person contesting the will must go forward with evidence that the will was procured through undue influence.