Hawkins, Hawkins & Burt LLP
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Will and Trust Contest
Florida law requires that a personal representative be represented by a member of the Florida Bar. Going it alone in probate matters is not an option. But when should you speak to an attorney in such situations? A general principle is: the sooner the better.

This is particularly true when disputes over wills or trusts arise or even when disputes are anticipated or threatened. It is important to take prompt action to take correct and effective action in an estate from the outset. It is also important to protect your rights early in the proceedings. Time periods under the Florida Probate Code and the Florida Trust Code are very specific. When a testator has died, a 10 day time for filing their will begins to run. While this statute is often overlooked, this and other delays by a personal representative or trustee during administration of wills and trusts may expose the fiduciary to criticism and even sanctions including removal and liability for money damages.  

Even at the point before an estate is filed and probate is begun, decisions may need to be made which deal with both procedure and substance and can affect the course and outcome of an estate. It is always wise to receive competent legal advice before taking the first steps of estate administration and trust administration. Appointed fiduciaries such as personal representatives and successor trustees always have the right to have independent legal representation of their own choosing.

We are happy to discuss your particular situation. Please call for a free initial consultation without obligation. Mr. Hawkins welcomes the opportunity to assist you in both the initial decisions and throughout the process of litigation or administration.

Proper focus and experience are important in the selection of a lawyer to assist you in your probate or trust issue. Please carefully consider the practice areas of any lawyer you are considering to help you. Does that lawyer handle probate and trust matters along with many other areas such as real estate, divorce or personal injury? Does the lawyer limit their practice to one area of the law? Mr. Hawkins limits his practice and represents only clients involved in probate and trust matters.

Mr. Hawkins has represented hundreds of personal representatives (executors), excluded beneficiaries and heirs in probate litigation and administration. Will contests and probate and trust disputes in which he has been involved range in value from a few thousand dollars to more than $30 million dollars.

At times during the probate of an estate issues may arise that require resolution through probate litigation. Mr. Hawkins represents personal representatives and trustees in defending and administering estates during probate and represents heirs, beneficiaries and excluded family members in challenging wills and trusts. This representation may include capacity issues, undue influence allegations, improper execution or drafting of wills or trusts, breach of fiduciary duties, curators, administrators or attorneys ad litem or conservatorships and exclusions of spouses and children.  
There really are an almost infinite variety of fact situations in probate and trust disputes. But there are some themes that come up with some regularity. Your situation will undoubtedly be unique. An initial question may often be whether or not there is “standing” to engage in the dispute. That is, do you or the person arguing against you have the right to contest or object to the will or trust? Is the objecting person an “interested party” as defined the law so as to have the right to object? This threshold question is complex and may be determinative of dispute at the outset. 

Other times a “no contest” provision may be in the will or trust. Clients worry whether or not this is an enforceable prohibition which prohibits the making of an objection? This is also known as an “in terrorem” clause. Florida law has held these clauses are unenforceable.

Typically will and trust contests are brought by family members of the deceased who believe they have been treated unfairly. Will and trust disputes often follow predictable patterns such as: (1) The decedent has a prior will dividing the assets among certain family members. The decedent then makes a later will leaving a different relative or group of relatives as the beneficiary. (2) The decedent leaves everything to his children or a certain group of relatives equally in the first will and a later will gives substantially all the assets to only one of the children, while the remaining children receive little or nothing. (3) The decedent has a prior will leaving assets to family members but the decedent subsequently makes a will benefiting a non-relative such as a care-giver, neighbor or friend. (4) A charity or other organization becomes a beneficiary in such a later will.

The disposition of a decedent’s assets can also be greatly impacted by lifetime changes in the titling or manner of holding assets. A will may have no effect on assets that were validly titled as survivorship assets. These may include jointly held assets, “in trust for” assets or “pay on death” assets. Of course, the question also arises as to whether or not such changes in the manner of holding assets were validly made. Should these assets properly be returned to the probate estate? Was the lifetime change in ownership a valid gift? There are as many variations in these facts as there are different family situations.

Just the fact of a person signing a will or trust that does not necessarily make it legally enforceable. Before such a document is determined to be valid, the court may be called on to determine several issues. Was the will or trust proper as to form and content under Florida law? Did the testator or creator of a trust have adequate mental or testamentary capacity to sign? The question may also arise as to whether or not the will’s author signed the document voluntarily or was he or she unduly influenced. Mr. Hawkins often represents clients who are named or appointed personal representatives in defending a will that has come under scrutiny for these and other reasons. He also represents people challenging the validity of a will or trust because of such illegalities.  

Brief views of some of the issues that arise concerning a contested will or trust dispute include:

  • Incapacity (lack of mental capacity)  
      Lack of capacity of the person executing the will can render the will invalid and subject it to contest. The person signing the will is called a testator. The testator must have the mental ability to comprehend three factors. In order to be considered competent to sign a will, a testator must be of sound mind, which is having testamentary capacity. Testamentary capacity means the testator has the mental ability to (1) understand the nature and extent of the property to be disposed of and (2) the relation between the testator and those who would naturally claim a substantial benefit from the will, as well as (3) have a general understanding of the practical effect of the will. The will is presumed valid, and the contestant must prove that the testator was not competent by a preponderance of the evidence.
  • Undue Influence (was the testator’s decision process supplanted by another person)
      This is the most likely ground for contesting a will or trust. Undue influence insinuates that the testator was so controlled by persuasion, pressure, and outside Influences that he or she did not sign the will or trust voluntarily, but was subject to the will of another when the will or trust signing took place. Generally it is necessary for the petitioner or will contestant to show that the person committing undue influence maintained a confidential relationship with the testator, was active in the procurement of the will or trust, and was a substantial beneficiary of the will or trust.
  • Fraud and Duress
      These factors are somewhat self explanatory and can impact the enforceability of a variety of legal documents, including wills and trusts.
  • Mistake
      In the will and trust context, the term mistake has a very specific and has a somewhat different meaning. While the term can apply to a testator or draftsman simply making an error in his or her will, this is not the usual legal meaning. Rather the term “mistake” in the case law often deals with a testator who makes a will based upon an erroneous belief or misunderstanding of facts which are external to the will. Mistake in that context can invalidate the instrument.
  • Improper execution of the will or trust instrument.
      Florida has specific statutory requirements concerning the execution of will and trusts. This is probably the rarest method of successfully contesting a will, but it must not be overlooked.
  • Tortious interference 
      This refers to a legally impermissible intervention with an heir’s or beneficiary’s expectancy under a will or trust. It is not as common a challenge as incapacity or undue influence and it comes with specific procedural prerequisites.
  • Attacks against personal representative’s qualifications or actions 
      These can result from action or inaction by the personal representative or by the trustee. At times the cause may be failure to be qualified under a statute or failure to file required pleading in a timely fashion.
  • Lack of validity of a will or trust due to internal conflicts
      At time the instruments themselves are ambiguous or contain inherent inconsistencies. Interpretations by the court may be required to resolve such issues.

If you are named as a personal representative or trustee, you should seek prompt legal advice. Mr. Hawkins represents people in all areas of estate administration and preparation such as:
  • Personal service and careful attention to estate and trust matters
  • Preparation of wills and trusts
  • Representation of personal representatives (executors and administrators) through the probate process.
  • Elective Share Option
  • Lifetime transfers and gifts

Some litigation of will and trust disputes may be handled on a contingency fee basis, others are done on an hourly basis. Fees for representing a personal representative or trustee on administrative matters are based on guidelines established by Florida Statutes.  

Filing fees are involved in both administration and litigation cases.  Contested cases may involve additional expenses such as expert witnesses, examiners of questioned documents and appraisers. Often medical experts are needed in contested cases and expenses of depositions of persons with knowledge of the testator may need to be taken.

All cases are unique and you should discuss the fees and costs involved in your case in advance. Mr. Hawkins offers a free initial consultation at which time your fees and costs will be discussed in full.