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Grounds To Contest A Last Will And Testament Or A Trust Agreement In Florida

By Brandon D. Bellew | Categories: Blogs, Trusts & EstatesPrint PDF May 2018

The most common issues that I handle as a probate and trust litigation attorney relate to the grounds to contest a last will and testament or a trust agreement. The grounds to contest the validity of a will or trust generally fall into three basic categories: 1. A formality—i.e. the document was not prepared or signed properly, 2. An issue with the testator (the person making the will or trust) e.g. lacked mental capacity, or 3. A third party’s involvement—i.e. someone unduly influenced the testator to execute the will or trust.

There are some preliminary considerations. First, it is important to understand that a person has the right to devise (leave or give) his or her property to whomever and however he or she chooses through a will or a trust. Second, the devise should make sense. For example, leaving a child out of an estate plan who has not spoken to or seen the testator for over twenty years might make sense, whereas a testator changing a will or trust a short time before death to leave his or her estate to someone who the testator just recently met may not make sense. Therefore, my first thought as I am analyzing the facts presented by a potential client is whether the will or trust makes sense. Of course, this is a matter of perspective. There will certainly be arguments on both sides as to why the devise does or does not make sense and those arguments will evolve as the case progresses.

  1. Whether the Will or Trust Was Executed with the Proper Formalities as Required by Florida Law

A will must be (1) in writing and (2) signed by the testator at the end (or the testator’s name must be written at the end by someone else at the testator’s direction and in the testator’s presence), and (3) the testator’s signature or acknowledgment that he or someone else previously signed the will must be in the presence of at least two witnesses who sign the will in the presence of the testator and in the presence of each other—i.e. the witnesses must be with each other and the testator when they sign the will.1 A trust that disposes of a person’s property after death must be executed with these same formalities.2

  1. Whether the Testator Had Mental Capacity to Execute the Will or Trust or Was Affected by an Insane Delusion

A person (an adult or emancipated minor) must be of “sound mind” when he or she makes a Will i.e. the person must have “testamentary capacity.”3 This standard also applies to a trust that disposes of property after the death of the person who made the trust (settlor/testator). In order for a testator to execute a valid will, that person must have “the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed.”4 This does not mean that a person must be able to understand all the details or “legalese” contained in a will or trust or that the person must know the specific dollar value of his or her property, but the testator must have a general understanding.

If the testator’s will or trust was the result of a mistaken conclusion that is based on a delusion, it may be invalid. An insane delusion is established by evidence that the testator (1) had no basis for his or her conclusions, (2) rejected evidence that he or she was mistaken about those conclusions and (3) executed the will or trust because of those conclusions.5 For example, it would be an insane delusion if a testator executed a will or trust that disinherited a child because that child did not keep in contact with the testator, but the true facts are that the child was in contact with the testator.6

  1. Whether the Will or Trust was the Result of Fraud or Undue Influence Exerted upon the Testator by a Third Party

A will or trust is void if it was procured by fraud, duress, mistake or undue influence.7 Fraud, duress, and undue influence are acts exerted upon the testator by a third party.

Fraud requires that a bad actor knowingly made false representations of material facts (lied to the testator about something important) with the intent to affect the testator’s will or trust and the misrepresentation caused the testator to execute a will or trust that he or she would not have executed otherwise.8

A claim of duress is not as common as undue influence in a will or trust contest. It requires proof that the will or trust was the result of blackmail or force exerted upon the testator by a third party. Duress requires that (1) one side involuntarily accepted the terms of another, (2) that circumstances permitted no other alternative, and (3) that the circumstances were the result of coercive acts of the opposite party.9

Undue influence is when a testator is induced by fraudulent means to such an extent that he or she executed a will or trust that was not what he or she wanted, but the desires of the undue influencer were substituted for the desires of the testator.10 This means that some other person (the undue influencer) used fraudulent means to persuade the testator to execute a will or trust. A will or trust contestant must establish facts that show the contested document would not have been executed but for the involvement of the undue influencer. This is difficult to prove through direct evidence—i.e. pictures, documents, recordings, etc. However, a presumption of undue influence can arise if the contestant establishes that the undue influencer (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the contested document or transaction, and (3) was active in procuring the contested document or transaction.11

Mistake is a narrow ground to contest the validity of a will or trust. The contested will or trust must have been executed by mistake, not based on a mistake—i.e. the testator thought he or she was executing a different document and did not mean to execute the will or trust.12 A mistake in wording or factual situation will not invalidate the will or trust but may allow for a lawsuit to reform the will or trust to conform to the testator’s true intent.


1. Fla. Stat. § 732.502.
2. Fla. Stat. § 736.0403(2)(b).
3. Fla. Stat. § 732.501.
4. Raimi v. Furlong, 702 So. 2d 1273, 1286 (Fla. 3d DCA 1998).
5. Miami Rescue Mission, Inc. v. Roberts, 267 So. 2d 686 (Fla. 2d DCA 1972).
6. See Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011).
7. Fla. Stat. §732.5165; Fla. Stat. §736.0406.
8. Goodman v. Strassburg, 139 So. 2d 163, 164 (Fla. 3d DCA 1962).
9. Woodruff v. TRG-Harbour House, Ltd., 967 So. 2d 248 (Fla. 3d DCA 2007).
10. In re Winslow’s Estate, 147 So. 2d 613 (Fla. 2d DCA 1962).
11. Newman v. Brecher, 887 So. 2d 384 (Fla. 4th DCA 2004).
12. See Forsythe v. Spielberger, 86 So. 2d 427 (Fla. 1956).



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