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Guide to Estate & Trust Litigation


Get the Help of an Experienced Florida Estate & Trust Litigation Lawyer With Your Will

Estate litigation is never a desired outcome, but probate disputes happen fairly frequently, and some of the common causes of estate litigation include people challenging wills, alleged breach of fiduciary duty by an executor, or failure to collect past debts. There can also be questions about a person’s actions as a trustee or fiduciary, alleged fraud by an executor, trustee, guardian, or agent acting under a power of attorney, or other common disputes in the probate process.

When a person needs to create a new will or trust, an experienced Florida Estate Litigation Lawyer can help them through the Florida estate litigation process. Estate litigation lawyer Thomas Upchurch of Upchurch Law is a former Assistant State Attorney in Pinellas County who has extensive experience with Florida probate and estate litigation disputes.

How Estate Litigation Works in Florida

The Florida Bar states that probate is a court-supervised process to identify and gather a deceased person’s assets (a decedent), pay their debts, and distribute their assets to their beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, while the rules governing Florida probate proceedings are located in the Florida Probate Rules, Part I and Part II.

Estate litigation cases arise when there are formal legal objections relating to the distribution of assets and inheritance after a person dies. The objections can result from an estate plan being altered due to undue influence or other disagreements over how an estate is being administered. Estate litigation cases can be very complex and often require legal representation who specializes in probate and trial litigation cases.

Estate litigation can relate to different formal legal objections about the distribution of assets and inheritances. Some cases can involve trusts, others will relate to wills, and there is also the possibility of people taking issue with a notice of administration.

Why Timing is Important in Estate Litigation Cases in Florida

Estate litigation is rarely a desired outcome for most people because legal conflicts are generally not the preferred route for people to take following the death of a loved one. Familial relations in these cases can make certain decisions even more difficult for some people, even when legal action seems necessary. 

It is important for people to understand that they often only have a limited amount of time to take certain kinds of actions in these cases, so it is important to retain legal counsel as soon as possible. During estate administration, a personal representative will have control of an estate’s assets and can pay bills, manage investments and property, conduct sales, and distribute assets. 

While a personal representative will be required to fulfill their duties in accordance with the terms of a will, recapturing distributed assets or losses associated with poor management can be very challenging. When the underlying issue relates to the validity of a will or trust document, a trustee or personal representative who is only fulfilling their duty can be moving assets out of reach of the people who were actually entitled to inherit through the estate or benefit from a trust. 

The end result is that estate property can be at risk until a beneficiary or another party with standing takes appropriate action. When you have concerns about the validity of a will or trust, believe that your loved one can have been subject to undue influence, or think that an estate or trust is not being properly managed, you should not hesitate to seek legal help. 

How People Can Protect Their Rights in Undue Influence and Lack of Capacity Matters

Ideally, every person makes their final wishes known by creating a trust or will before their death. State law in Florida will often defer to the better judgment of a testator or trust grantor, but there can be circumstances in which a Florida court sets aside a will or trust.

Common reasons for contesting a will include challenging a will’s validity, removing beneficiaries from estates, or wills being executed under duress. Perhaps the two most common issues in these cases relate to the lack of capacity of a testator or undue influence in the creation of a will.

Wills must be formally drafted, signed, witnessed, and executed by a person who has full mental capacity, meaning they must possess the ability to comprehend their assets, beneficiaries, and the effects of their legal document. Some of the most common reasons wills are contested on mental capacity grounds relate to people with later-life diseases like Alzheimer’s or dementia, as well as other factors that can relate to diminished mental capacity, such as brain injuries, disability, or intoxication (that may include prescribed medication).

Contesting a will on the basis of undue influence involves a third party manipulating a person into altering their will for their own personal gain. Such actions can include a person executing or modifying a will or removing one or more beneficiaries from the estate.

Undue influence is a very common dispute over the validity of a will or trust, and proving undue influence usually involves a person having a substantial benefit under a will, a person possessing a confidential relationship with a decedent, and a person being active in procuring a will. Undue influence simply argues that a person for whom a will was written involves their wishes being manipulated and overpowered by another party, thus obscuring the actual wishes of a testator and creating conflict in the execution of the will.

With these types of cases, Thomas Upchurch is an experienced Florida estate litigation attorney who can offer you the best advice about how to address your issues. Mr. Upchurch will know how to take all of the appropriate actions in your case, and he can completely assess your situation, provide legal advice concerning your options as to how likely you are to succeed, begin collecting all of the evidence necessary to prove your claim, help you manage all procedures, deadlines, pleadings, and other technical requirements involved, negotiate a possible settlement, and take the case to court when necessary.

Undue Influence in Florida

Undue influence is a cause of action in which a person challenges the validity of a testamentary document like a will, trust, or deed. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) is a Florida Supreme Court case that led to the creation of the Carpenter presumption, which was ultimately codified in 2002 by the Florida Legislature in Florida Statute § 733.107(2).

The Florida Supreme Court held that proof of a confidential relationship between a beneficiary under a will and a testator and a beneficiary’s active procurement of a will creates a rebuttable presumption that a beneficiary had unduly influenced a testator in the making of a will. It identified seven nonexclusive facts, proof of which constitutes active procurement of a will, such as the presence of a beneficiary at the execution of a will, the presence of a beneficiary on the occasions when a testator expressed a desire to make a will, a recommendation by a beneficiary of an attorney to draw a will, knowledge of the contents of a will by a beneficiary prior to its execution, giving instructions on preparation of a will by a beneficiary to an attorney drawing a will, securing witnesses to a will by a beneficiary, and safekeeping of a will by a beneficiary subsequent to its execution.

No specific number of factors is necessary to invoke a presumption, which means these matters are within the discretion of trial courts. The list above can also include people isolating testators and disparaging family members, mental inequality between decedents and beneficiaries, and the general reasonableness of a will or trust provisions.

When a Carpenter presumption is invoked, the burden will shift to a defendant to prove, by a preponderance of the evidence, the nonexistence of undue influence. Florida Statute § 733.107(2) establishes that it is a will proponent’s burden to prove the absence of undue influence, also known as “proving a negative.”

Undue influence is a fraud that is often proven through circumstantial evidence and usually involves a shifting burden of proof, meaning that undue influence is rarely exercised openly in the presence of other people, so it must be proved through indirect evidence of facts and circumstances from which undue influence can be inferred as certain facts or circumstances may not be of much weight when considered alone, but can be sufficient to establish an issue when combined with other facts.

A presumption of undue influence in Florida will shift the burden of proof from a person initiating a claim to the individual who is accused of undue influence. After a presumption of undue influence is raised, the burden of proof can be reversed and require the accused person to prove no undue influence occurred.

The burden of proof will shift to a beneficiary if the person challenging a will can prove undue influence by showing an accused person will receive a substantial benefit through a will, an accused person and testator had a confidential relationship, and an accused person was active in procuring a will. While the initial burden of proof will rest with a person challenging the documents once a will or trust has been executed, a challenging person presenting sufficient evidence to give rise to the presumption of undue influence will shift the burden of proof to the proponent of the document to prove by a preponderance of the evidence that the will or trust was not the result of undue influence.

The Carpenter presumption does not apply to the elements of a cause of action for undue influence as they instead relate to the shifting burden of proof. Even when a will contestant is unable to prove Carpenter factors, they can still prove undue influence if there is sufficient evidence to prove that an alleged undue influencer destroyed the free will and controlled the mind of a testator to such a degree that the resulting will or trust was the product of the mind of the undue influencer and not that of the testator.

Lack of Capacity in Florida

Many elders have medical or psychiatric problems that can affect their mental and cognitive ability, and litigation can attempt to prove a person’s lack of mental capacity. Many claims will be based on a testator’s lack of mental capacity and can be among the most common kinds of testamentary challenges. 

Old age, illness, or a mental disease like Alzheimer’s disease will not automatically prove a lack of capacity, as a person with mild to moderate dementia or some disorder with periods of lucidity may still be found to have had a sound mind to create a will. If a person with dementia cannot remember the identities of the beneficiaries in their will or the relationships between themselves and other people, then a person may not have had the mental capacity to make a will.

Banks v. Goodfellow (1870) was a case in which the validity of a will by John Banks, a paranoid schizophrenic, was challenged on the basis that he was insane and unable to make a will. The Banks v. Goodfellow test establishes that a testator has testamentary capacity when they:

  • Understand the nature of making a will and its effect.
  • Have an understanding of the extent of the property of which they are disposing under a will.
  • Understand the claims of family or friendship involved.
  • Are free from any delusion of the mind that can affect their dispositions toward other people.

Proving Undue Influence and Lack of Capacity 

The unfortunate truth is that undue influence often will not be recognized until a testator or trust grantor is deceased, or they progress to such a diminished capacity that they cannot provide information about their wishes and the process that led to the creation of their documents. In many cases, relatives of a deceased person will be completely unaware that a loved one even drafted a new will, created a codicil, or otherwise modified their estate plan.

Family members will often need the help of an estate litigation attorney to establish a testator’s mental capacity at the time a document was executed, as well as any influence that was exerted on them without input from affected people or an ability to assess their faculties. There will be different kinds of evidence between lack of capacity and undue influence cases.

Lack of capacity cases often involve evidence that comes in the form of medical records and medical professionals who assessed people around the time instruments were created, as well as the observations of people who interacted with testators or grantors. When a new will represents a dramatic departure from a creator’s previously expressed wishes, it can often support a challenge.

An undue influence case can be trickier because it may be more difficult to prove that another person took advantage of a testator, as it is quite common for a person who is either elderly or in poor health to seek the help of a loved one in crafting a will and the person being asked to help can often be a beneficiary. Undue influence cases often rely on examining which person originally contacted an attorney for assistance with a will, whether a beneficiary connected a testator to a lawyer, whether a beneficiary was present when the contents of a will or trust were being discussed, whether a beneficiary was present when documents were executed, and the person who was in charge of safeguarding a will.

Get Estate Litigation Help Today

Thomas Upchurch is a Shepard Broad College of Law graduate at Nova Southeastern University who has been handling estate litigation cases for nearly two decades. He is well aware of how difficult these kinds of cases can be for most people and actively works to help every client achieve the most favorable possible outcomes for their cases.

Upchurch Law understands how complicated these kinds of cases can be, and we will know how to help people get answers to their legal problems. 

If you need help with a legal issue relating to a loved one’s will, do not hesitate to call us at (386) 272-7445 or contact us online to arrange an initial consultation.

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