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If your loved one has been coerced to create a new will or trust, Upchurch Law can help reclaim probate rights through estate litigation. This is a complex field of law, and cases can take many different forms. Estate litigation lawyer Thomas Upchurch has extensive experience with probate and estate litigation disputes, and will fight to bring exploitative parties to justice and restore your loved one’s legitimate will or trust. Contact our Daytona Beach, FL, office today to schedule your initial consultation.
The standard Florida probate process involves a court proceeding, but that proceeding is typically of an administrative nature and not described as “litigation.” Estate litigation arises when a conflict occurs and one or more parties asks the court to settle those differences. In the probate process, these matters are litigated within the probate case, rather than through the filing of a separate lawsuit.
Challenging the validity of a will is probably the best-known type of probate litigation, but many other issues may trigger estate litigation. For example, beneficiaries may:
Similarly, trust litigation may relate to the validity of the trust itself, or may involve claims relating to the trustee’s performance of his or her duties. This type of litigation can be complicated, and is best undertaken with the assistance of an attorney who has extensive experience in will contests, trust litigation, and other types of trust and estate litigation.
With estate litigation, you need an attorney with proven success in this field of law. Mr. Upchurch focuses exclusively on probate matters, and has helped many clients protect their best interests.
Many people are understandably reluctant to commence estate litigation. After the death of a loved one, the last thing most people want is a legal battle. Beneficiaries and other concerned parties may also be hesitant to trigger stresses and conflict among family members during a difficult time. Of course, Florida law and procedure requires that certain types of actions be filed within specified time periods, but that’s not the only reason time is of the essence.
When estate administration is underway, the personal representative generally has control of the assets of the estate, and may pay bills, manage investments, manage property, conduct sales, and distribute assets. Although he or she is required to fulfill these duties in accordance with the terms of the will, recapturing distributed assets or losses associated with poor management may be difficult or impossible. And, of course, if the issue is the validity of a will or trust document, then even a trustee or personal representative who is faithfully fulfilling his or her duty may be moving assets out of reach of those truly entitled to inherit through the estate or benefit from the trust. In short, estate property is at risk until a beneficiary or other party with standing takes action.
Therefore, if you have concerns about the validity of a will or trust, believe that your loved one may have been subjected to undue influence, or suspect that the estate or trust is not being properly managed, it is in your best interest to get knowledgeable guidance right away. Consulting an experienced estate litigation attorney can help you to determine whether additional action is needed, and how best to proceed in your specific circumstances.
In an ideal world, everyone would make his or her true wishes clearly known through the establishment of a valid trust or creation of a valid will. Florida law gives great deference to the wishes of the testator or trust grantor. However, under certain circumstances, a Florida court may set aside a will or trust.
While successful contests are sometimes based in technical flaws, such as an improperly witnessed will or an ineffectively drafted trust document, the most common issues involve lack of capacity of the testator or undue influence in the creation of the instrument.
In a case of undue influence or lack of capacity, the will may not accurately reflect what the deceased person would have wanted. In such cases, an experienced estate litigation attorney such as Thomas Upchurch can be your best resource.
When you retain Mr. Upchurch to challenge a will or trust, he will:
If you fear that your loved one has been the victim of a dishonest caregiver, manipulative family member, or simply lacked legal capacity at the time will was written and executed or a trust was created, contact us online now or call 386-320-6169.
Undue influence cases most commonly involve an unscrupulous caretaker or family member who takes advantage of a sick or elderly person’s vulnerability and isolation to persuade him or her to execute a will or trust that favors that person’s interests, or make changes to existing estate plans. The pressure applied in undue influence cases varies.
In some cases, the influence is psychological: A caretaker or close relative may cultivate dependence, feed an elderly or ailing person misinformation about other relatives or the legal process, or win trust and steer the person to sign documents that he or she may not understand or that may not accurately reflect his or her stated wishes. In other cases, the influence may be more direct, such as a caretaker making physical threats or leading a dependent person to believe that he or she must do as the influencer wishes or else be left without necessary assistance.
Lack of capacity may be an issue in an undue influence case, or may stand alone as grounds for challenging estate planning instruments such as a will or trust. In simplest terms, lack of capacity means that the testator or trust grantor was not legally competent to make legally binding decisions and create or modify estate documents at the time the challenged instrument was created.
A person may be legally incapacitated for many reasons. Some of the most common reasons among the elderly and terminally ill include dementia, Alzheimer’s disease, medical conditions impacting cognition, and impairment due to medication.
Unfortunately, undue influence often goes undetected until the testator or trust grantor is deceased, or has progressed to such diminished capacity that he or she cannot provide information about his or her wishes and the process that led to creation of the documents. Similarly, relatives may be unaware that their legally incapacitated loved one drafted a new will, created a codicil, or otherwise attempted to modify the estate plan.
That means that family members, with the help of an estate litigation attorney, will typically have to establish the testator’s mental capacity at the time the document was executed and/or the influence exerted on him or her without input from the affected person or the ability to secure a direct assessment of his or her faculties.
In a lack of capacity case, the evidence will mainly come from two sources: medical records and medical professionals who had the opportunity to assess the patient around the time the instrument was created, and the observations of those who interacted with the testator or grantor during that period. Other information may also impact the court’s assessment. For instance, a new will that is a dramatic and unexplained departure from the creator’s consistently expressed past wishes may support the challenge.
Undue influence may not be immediately obvious, even if the estate lawyer drafting the documents has the opportunity to observe the client and the influencer together. It is not unusual for a person who is elderly or in poor health to request the assistance of a younger relative or caretaker in attending to matters such as estate planning. Those closest to a person are most likely to be beneficiaries and also the most likely to be called upon for help.
When undue influence is at issue, the court will have to weigh the degree of involvement as it assesses whether or not the testator was acting voluntarily, or whether he or she was under the influence of a friend, relative or caretaker.
Some of the factors to be considered include:
Estate litigation (also known as probate litigation) and trust litigation can be complicated and contentious. These quick answers to frequently asked questions offer a general overview of what estate litigation is, when it may be an option, and what’s necessary to successfully challenge a will or trust.
The term probate litigation applies to any contested issue that arises in the administration of an estate and is argued before the probate court. One of the most common types of probate litigation is a will contest—a challenge to the validity of a will submitted to probate. But, there are other types of probate litigation, such as an action to remove and replace a personal representative.
A will may be challenged either because it is—or is alleged to be—technically invalid, or when an interested party asserts that the testator lacked capacity to execute a will or was subjected to undue influence.
The formal requirements for a will to be valid in Florida are that the testator be at least 18 years of age and of sound mind, that the will be in writing, that the will be signed by the testator, and be signed by two witnesses in the presence of the testator and each other. If any of these elements is lacking or is in question, the will may be subject to challenge.
Testamentary capacity is often referred to as being “of sound mind.” It simply means that the person has the legal capacity to enter into legally binding agreements, such as a will. Some common examples of situations in which the testator may be found to have lacked the capacity to execute a will include a testator who is suffering from cognitive deterioration due to conditions such as Alzheimer’s disease or dementia or one who is impaired by medication at the time of execution.
Florida probate courts consider a long list of factors when determining whether or not the testator has been subjected to undue influence. The influence may take many different forms, including preying on a vulnerable older person’s isolation and dependence on a caretaker, or a campaign of misinformation designed to poison the testator’s relationships with other family members.
A will may also be subject to challenge if the testator executed the document as a result of fraud or duress. One example of fraud that might give rise to a will contest would be if someone tricked the deceased into signing the document by misrepresenting what it was or lying about its provisions. Duress could involve any type of threat or intimidation, such as threatening to withhold food or medicine from a vulnerable elderly person, or putting the testator in fear of physical harm.
The time frame in which a Florida will may be contested is very limited. Florida law specifically prohibits any challenge being raised before the testator’s death. However, once the probate process is underway, the time frame for contesting the will is quite limited: depending on the type of notice, the deadline may be as little as 20 days from receipt of notice.
If you believe that you have reason to contest a loved one’s will, you will want to consult with an experienced estate litigation attorney as soon as possible, to ensure that you are prepared to move forward quickly.
Under Florida law, a will can be contested by any interested party. The statute defines interested party broadly, as anyone who “may reasonably be expected to be affected by the outcome of the particular proceeding involved.” This includes beneficiaries and the personal representative of the estate, but may also include others, such as close family members who were not named beneficiaries.
One concern many people have about estate litigation is concern that they may lose their inheritances entirely if they contest the will. Under Florida law, will provisions attempting to disinherit or penalize a beneficiary who contests the will are invalid. However, estate litigation can drain estate assets, cutting into the amount available for distribution to heirs.
Legally, there is no requirement that someone initiating a will contest or other estate litigation must employ an attorney. However, an individual who chooses to move forward without a lawyer will generally be held to the same standard as an attorney—compliance with technical pleading requirements and deadlines, provision of certain materials to opposing counsel, establishment of admissibility of evidence and more.
Will contests based on allegations of undue influence are particularly difficult, since the influenced person is no longer available to testify or otherwise provide information, and the boundaries as to what constitutes undue influence are somewhat subjective. Thus, it is generally in your best interest to get guidance from an experience will contest lawyer.
Trust litigation is similar to probate litigation, except that it relates to a trust rather than a will. Like a will, the validity of a trust may be challenged if it wasn’t properly formed, if the grantor lacked the legal capacity to create the trust, or if the trust resulted from undue influence, coercion or duress. Similarly, a trustee may be subject to removal for malfeasance, just as an interested party may petition to remove a personal representative who is breaching his or her fiduciary duty.
While probate litigation is an adversary proceeding opened in an existing probate case, passing property through a trust doesn’t require involvement of the probate court. Thus, challenging the validity or administration of a trust requires initiating a lawsuit.
Attorney Thomas Upchurch has extensive experience with probate and estate litigation. He is familiar with the complex procedures and requirements associated with this type of litigation, and is dedicated to protecting the interests of legitimate heirs and beneficiaries. He also understands the stress and emotional issues associated with seeing unscrupulous parties try to derail your loved one’s wishes and divert assets. That’s why we combine compassionate, empathetic client service with aggressive representation.
If you need help to fight back against an exploitative caretaker or family member, a dishonest or unqualified personal representative or trustee, or other party who is jeopardizing your loved one’s legacy, schedule a consultation today.