Will & Trust Litigation in Florida

Tyson Law Group, PLLC • Serving Clients and Their Families in Jupiter, FL and the Surrounding Areas

Will Contest

In Florida we call a will contest Revocation of Probate. First, a will can be overturned if the petitioner can prove that there was undue influence over the testator. Second, a will can be overturned if it can be proved that the testator lacked the mental capacity to make a will. Third, a will can be set aside or probate can be revoked, if the will was not drawn in accordance with legal requirements.

If you suspect that the will maker was manipulated by another at a time when he or she was vulnerable, then you could try to prove to the judge that the will should be determined to be invalid. Undue influence is the disruption of a person’s natural impulse to provide for family members and instead leave the property to the manipulator. This is a form of abuse of an elderly person. If you are concerned about certain relatives challenging your will after you pass, contact this office to find out what you can do to avoid such litigation. Questions that need to be answered: Is the undue influencer a substantial beneficiary under the will? Did this person occupy a confidential relationship tp the decedent? Was this person active in procuring the will?

Lack of mental capacity claims are based upon the lack of the testator’s mental capacity and are the most common types of challenges. Testamentary capacity requires that the testator has sufficient mental acuity to understand a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by the Last Will and Testament, and (c) how his or her Will disposes of such property. The fact that an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a will. Lack of mental capacity or incompetence is typically proven by medical records, irrational conduct by the Decedent, and the testimony of those who observed the Decedents at the time the Last Will and Testament was executed. Here the attorney often looks for delusions as a cause for lack of mental capacity. The legal definition of delusions can be difficult for the layperson to understand. Courts consistently have held that in order for a delusion to affect testamentary capacity, the delusion must have such a hold on the testator’s mind that it governs the making of the will.

Trust Litigation

The dividing lines between trusts, wills, trust administration and probate administrations have become less clear. Florida Statutes now hold that the Probate court has jurisdiction over trustees and beneficiaries. The Florida Trust Code gives parties the right to bring proceedings relating to the “validity, administration or distribution of a trust.” The Florida Statutes define homestead to include property held in a revocable trust at the settlor’s death. The statutes also allow courts to determine disputes over trustee’s fees and accounting requirements. With the widespread use of pour-over wills into revocable inter vivos trust, a Florida probate administration may be pending at the time a dispute arises regarding administration or construction of the trust into which estate assets are to pass. The trust code expressly authorizes filing a construction action for a testamentary trust in a pending probate proceeding, and applies the Florida Probate Rules to that proceeding. Also, actions against trustees and trusts can be separate and apart from probate proceedings as the case warrants.

Elder Law Litigation

Abuse of elderly persons is becoming more prolific in Florida. Nursing home abuse is one such area. Exploitation of elderly vulnerable adults is another area of litigation. There are civil and criminal statutes against this kind of violation of vulnerable adults.

On October 1, 2014, Florida Statute 825.103, entitled “Exploitation of an elderly person or disabled adult” became effective. This statute made it easier for prosecutors to pursue people who prey on elders and increased penalties for crimes against elders. This statue focuses on the financial exploitation of elderly and disabled adults. It targets people who use funds, assets, or property of elderly or disabled adults with the intent to deprive them of use of those funds, assets or property or to benefit someone other than the elderly person or disabled adult. It also targets people who breach their fiduciary duties, misappropriate money, and fail to use an elderly person’s or disabled adult’s income and assets for the necessities required fo that person’s support and maintenance. Civil attorneys can sue by using this statute in conjunction with the Florida Civil Theft Statute to recover treble damages and attorneys fees on behalf of the adult.

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Tyson Law Group

Tyson Law Group, PLLC

(561) 717-0136


110 Front Street, Suite 300
Harbourside Place Jupiter, FL 33477

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