Every once in a while, relatives of a deceased person attempt to probate competing wills claiming that their version of the decedent’s Last Will and Testament expresses the true intentions of their loved one. They seek to have the other will “revoked” in what is commonly known as a “will contest.” The following are some things you should know before contesting a will:
- Basis of Action. A will can be revoked on two grounds: (1) lack of testamentary capacity and (2) undue influence.
- Standard of Proof: The standard of proof on the issues of incompetence and undue influence is preponderance of the evidence
- Burden of Proof: The burden of proving incompetence and undue influence is on the person challenging the will.
Testamentary Capacity: To execute a valid will, the testator (the person making the will) need only have testamentary capacity (i.e. be of sound mind) which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed. A testator may still have testamentary capacity to execute a valid will even though he may frequently be intoxicated, use narcotics, have an enfeebled mind, failing memory, or vacillating judgment as long as it is done during a lucid interval.
Incompetence can be proven by direct evidence of the testator’s mental condition at the time he signed the will.
The person challenging the will may also prove incompetence by evidence of the testator’s condition before and after the signing of the will.
Additionally, there exist two fact patterns which a challenger to a will may establish to create a presumption of incompetence: (1) adjudication of incompetence prior to execution of the will and (2) proof that the testator was incompetent prior to execution of the will and the condition was permanent and progressive. The proponent of the will may, however, rebut the presumption by showing the testator executed the will during a lucid moment or interval, which is described as a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity.
Undue Influence: Undue influence justifying the revocation of a will must be such as to dethrone the free agency of the person making it and rendering his act the product of the will of another instead of his own. The influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator. The mental condition of the testator is a factor considered when evaluating whether there was undue influence.
In the absence of direct evidence of domination over the testator, the proponent of the will must show that the will was properly executed, which can be accomplished through a self-proving affidavit executed in accordance with section 732.503, Florida Statutes, then show (1) the existence of a confidential relationship between the testator and the proponent and (2) that the proponent was active in procuring the will, which creates a rebuttable presumption of undue influence.
The term “fiduciary or confidential relation,” is a very broad one; the origin of the confidence is immaterial. The rule embraces both technical fiduciary relations and those informal relations that exist wherever one man trusts in and relies upon another. The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal. Several criteria to be considered in determining whether active procurement exists are: (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. This list of criteria is not exclusive, and proof of all the listed criteria is not required. Each case involving active procurement must be decided with reference to its particular facts; however, simply changing a will is not evidence of undue influence nor is transporting the testator to a lawyer’s office and remaining in the waiting room.
Once the contestant satisfies a presumption of undue influence in the making of the will, the proponent of the will has the burden of proving the nonexistence of undue influence; i.e., that the testator executed the will of his own free will, agency, and power; that he was capable of making his own decision about who would receive his property. This burden can be met by, among other means, evaluating the following factors: the manner and size of the provision to the beneficiary to determine whether it is natural; the types or classes of beneficiaries listed in all of the testator’s wills; the simplicity of the will; the other significant decisions made by the testator at the time he executed the will; and the testator’s motivation for disinheriting the contestant. If the proponent of the will meets this burden, the contestant’s claim must fail.
If you have questions regarding the probate of a loved one’s estate, please contact David Switalski.