Florida law requires that a will and trust must be executed with certain formalities by someone who has testamentary capacity and who is signing of their own free will. The grounds to contest a will and trust are noted below:

• Improper execution
• Incapacity
• Undue influence
• Insane delusion
• Mistake of fact
• Ambiguous terms
• Fraud
• Reformation

HOW DO I DISPUTE A WILL OR TRUST?

Generally, claims to contest wills and trusts may only be brought after the death of the settlor (the person who signed and created the trust) or testator (the person who signed and created the will).

If a family member was incapacitated when they made changes to their estate plan or they were unduly influenced into changing their estate plan, an interested person can request a judge to void the will or trust. In order to bring a claim to void a trust or will, you must establish that you have not waived your rights and that you were entitled to receive assets under a prior valid document, or if there is no prior document, that you would be entitled to receive assets under Florida’s intestacy laws.

During an estate or trust administration, a fiduciary may serve various documents on beneficiaries or other interested persons to trigger deadlines for contesting a will or trust. If you have concerns about the terms of a will or trust, you should consult with an attorney before signing any document which may serve to waive your rights.

WHAT IS REFORMATION?

If there was mistake made by the drafting attorney or the settlor in the preparation of a will or trust, Florida’s trust code and probate code provide a remedy for the court to reform or change the terms of the document at issue. If it can be shown that a settlor intended something different than the current estate plan, the court can change the trust or will to have the assets distributed according to the settlor’s intent.

Ms. Rountree has handled a variety of will and trust contests and is skilled in gathering evidence to prosecute and defend such claims. She has spoken nationally on the prosecution and defense of will contests. Follow the link to view a copy of her will contest presentation, which provides a comprehensive overview of the legal authority and evidence gathering process for claims of improper execution, incapacity, insane delusion, mistake, ambiguous terms and fraud. Although the presentation is geared toward will contests, the discussion on caselaw and evidence is applicable for trust and will proceedings.