Indications Of An Invalid Will Or Trust
At VanNess & VanNess, P.A., much of our work focuses on will and trust contests and disputes, including beneficiary designations — legal actions where a party challenges the validity of a will, trust or beneficiary designation under Florida law. According to Florida statute §732.502, if a person signing a will is qualified to do so, the document itself must be examined to be sure that the formalities of execution, or signing, are met. These formalities consist of the following:
- A will must be in writing.
- A will must be signed by the testator (or another at the testator’s direction).
- The testator must acknowledge signing in the presence of two witnesses (or directing another to sign).
- Two witnesses must sign in the presence of each other and of the testator (this critical factor evidences the existence of a self-proving will).
Pursuant to Florida statute §737.111, the execution requirements for a trust are the same as for the execution of a will. Florida law states that in order to possess the capacity to sign a valid will or trust or to be “of sound mind” for this purpose, the individual must mentally understand the following in a general way: a) The nature and extent of the property to be disposed of b) The relationship to those who would naturally claim a substantial benefit from the will c) The practical effect of the will as executed The courts generally presume that a person has the capacity to sign his or her own will, so the legal burden is on the person challenging a will to prove that the person who signed it lacked the testamentary capacity to do so, thereby rendering the will invalid. The attorneys at VanNess & VanNess, P.A., practice extensively in this area of law and are proficient in determining if a will or trust is valid. The next step is reviewing a case thoroughly to evaluate the availability of evidence, witnesses and their credible testimony — all of which are necessary to prove the decedent lacked capacity. Insane delusions also come into play when determining whether a will is valid. According to the Florida Supreme Court, an insane delusion is a “fixed false belief without hypothesis, having no foundation in reality” Hooper v. Stokes, 145 So. 855 (Fla. 1933). The fixed false belief must be persistently adhered to against all evidence and reason. The law is understandably complex in this area, and attorneys must proceed through an extensive and complicated process to prove to the court that someone signing a will or trust lacked capacity due to the existence of insane delusions. There are circumstances when a will or trust may be declared invalid, including the following situations:
- Undue influence or duress: Undue influence and duress cases often involve an end-of-life caretaker, neighbor or family member who has unfairly influenced the terms of the will or trust through coercion or other means.
- Lack of mental capacity: Under Florida law, testators must have the mental capacity to create a will and trust. Settlors/grantors must also have the capacity to execute a trust instrument. If they did not — for example, if they were unable to understand who their family members were or could not comprehend the extent of their assets — the will or trust can be challenged and declared invalid. Many of these cases involve testators who have dementia, Alzheimer’s disease or mental health issues.
- Improper execution: Florida law requires that wills and trusts be signed by the testator who has capacity, along with two disinterested witnesses, or, in the instance of signing a trust, the grantors/settlors of the trust must have capacity, and the grantors/settlors must sign along with disinterested witnesses. These signatures must be obtained while the testator and witnesses to the will signing or grantors/settlors and witnesses to the trust signing are in one another’s presence. If these guidelines were not followed, the will or trust may be determined invalid by the court.
Warning Signs That Could Indicate Undue Influence
- Actions become inconsistent with previous, long-standing values/beliefs.
- Beneficiary changes are made in financial accounts that seem to enrich one individual over others.
- There are inconsistent distributions of assets, belongings or property in prior wills/trusts.
- Valuable assets and property are given to someone who is not a natural heir or object of their bounty.
- A caretaker dismisses professionals involved with finances or medical care, stockbrokers, Realtors, or accountants.
- A caretaker or acquaintance isolates the person from family, close friends, church, community and stable relationships.
- A caretaker moves into the person’s home and takes control of the daily schedule and expenditures.
- The person develops a mistrust of family and accepts views supported by a new friend, caretaker or acquaintance.
- A vulnerable person signs a new will, living will or trust naming a caretaker as beneficiary.
- Estate planning documents are altered.
- A caretaker or an acquaintance accompanies an elderly person to important appointments, not allowing the person to speak for him/herself.
- Checks are written made payable to cash and are in round numbers or large amounts.
- Expensive gifts are given to a caretaker or the caretaker’s family.
- A vulnerable person seems increasingly helpless, frightened or despondent.
Your Advocate In Will And Trust Contests
Drawing on more than 100 years of collective experience, our attorneys take a thoughtful, realistic and analytical approach to every case. We will evaluate the known aspects of your case, determine whether you have grounds for contesting a will or trust, and proceed to represent you and advocate for your best interests while seeking an effective and successful resolution. Call our Crystal River office at 866-697-6221 or 352-436-4333 to schedule a meeting with one of our highly experienced and effective lawyers if you are seriously contemplating contesting a will or trust. You can also contact our office through our confidential and secure online form. We represent clients throughout Citrus County, central Florida and the entire state.