Estate Litigation Services
Estate litigation arises when a conflict about any aspect of an estate occurs and the courts must step in to resolve the conflict. There are several conflicts that can arise within an estate that would require litigation, such as:
- Contesting the validity of a Last Will and Testament.
- Contesting whether a Trustee is properly performing their duties;
- Objecting to the manner in which a personal representative has handled/dispersed assets of the estate
These are just a few examples of the many issues that can arise in an estate and all would require an attorney with sufficient knowledge of the estate planning process and probate. Contesting the validity of a Last Will and Testament can include mistakes in execution, undue influence when signing the will, or lack of testamentary capacity. A mistake in execution means that the will was not executed within the requirements of Florida Statute §732.502, which set forth specific requirements in creating a valid will.
Undue influence is the over-persuasion, coercion, duress, force, or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Undue influence claims challenge whether the person creating their Last Will and Testament did so without being coerced by either a family member, friend, or an outside party. In probate litigation, undue influence can be proven by circumstantial evidence. For example, your long-lost brother, Bill, who your family hasn't heard from in 10 years all of a sudden shows up at your mother's house for a week. A few months later your mother dies and you realize that she recently signed a will that gave all of her assets to Bill. This is a situation where undue influence has likely occurred.
Lack of Testamentary Capacity means that at the time the Will was executed, the person creating the Will did not have the mental capacity to understand basic terms of the Will, such as how the Will distributes the assets, the family members or friends that would be receiving the property, and the nature of the assets being distributed. A lack of testamentary capacity most commonly occurs in the elderly with mental health issues such as dementia or Alzheimer's. The standard for "testamentary capacity" is for the person executing the will to understand the nature and extent of their assets as well as the people named to receive them. The Golden Rule for someone who is suspected of lacking mental capacity to execute a will is to ensure that an examination is performed by a medical professional on the testator before they make their will. Medical evidence will be highly convincing if probate litigation arises involving the dispute of testamentary capacity. It is also extremely helpful to have your attorney make their own legal assessment and keep contemporaneous notes regarding your wishes to support any potential contests later. This is one of the biggest values in having an attorney guide you through your estate plan as opposed to downloading a form online and completing it yourself. The latter is much easier to overturn. Learn more about Probate in Miami.
Although Will contests are the most common type of probate litigation, other types of estate litigation can involve the breach of fiduciary duties, elective share litigation, will construction, determination of heirs, removal of fiduciary, or a surcharge action.
The Estate Plan
135 San Lorenzo Ave Suite #750
Coral Gables, FL 33146
(305) 677-8489
https://www.TheEstatePlanFL.com/
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