By: Brent V. Trapana

Brent V. TrapanaProbate litigation is no stranger to South Florida.  While it is impossible to absolutely prevent a lawsuit involving your estate after your death, it is possible to take precautionary measures to help reduce the likelihood of such litigation.   Many people wait until it is “almost” too late when they start to think about estate planning.  Additionally, people tend to involve their loved ones, who also happen to be the beneficiaries of their estate, when they begin their estate planning process.  Unfortunately, however, this has the possibility of leaving the door open for someone who may not be pleased with your estate planning decisions to challenge the validity of your testamentary instruments and leave your beneficiaries to deal with the complexities of an expensive probate lawsuit.

The most frequent type of probate litigation in Florida deals with parties contesting the validity of a will. Grounds for contesting a will include undue influence, lack of testamentary capacity, defects in execution, mistake, revocation, and insane delusion.  Undue influence is generally the most common allegation made when the validity of a will is being contested. To prove undue influence, one must demonstrate that the beneficiary had a confidential relationship with the decedent and actively procured the execution of the will.  The most common type of confidential relationship seen in will contestation cases is a parent/child relationship.

The Florida Supreme Court in the landmark decision of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), established seven factors to help courts determine whether a will was the product of active procurement.  The factors are:

  1. Presence of the beneficiary at the execution of the will;
  2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
  3. Recommendation by the beneficiary of an attorney to draw the will;
  4. Knowledge of the contents of the will by the beneficiary prior to execution;
  5. Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
  6. Securing of witnesses to the will by the beneficiary; and
  7. Safekeeping of the will by the beneficiary subsequent to execution.

Since the Carpenter decision, the following three additional factors have also been used to help courts determine whether a will was the product of active procurement:

  1. Isolating the testator and disparaging family members;
  2. Mental inequality between the decedent and the beneficiary; and
  3. The reasonableness of the will or trust provisions.

Many of the above factors courts use when determining whether a will was actively procured deal with the beneficiaries’ involvement with and knowledge of the execution of the will. One of the more common cases seen in will contestation actions is when a child, allegedly at the request of an elderly and/or sick parent, helps that parent with their estate planning and also happens to be a beneficiary of the estate.  However, as noted above, this could cause that beneficiary to spend a considerable about of time and money litigating an active procurement issue. To avoid this issue, you should begin your estate planning early when you are of sound mind and competent to do so.  You should additionally meet with your legal advisor by yourself to discuss how you want your estate to pass after you die.  Accordingly, while there is no guarantee that a disgruntled loved will not attempt to have your will declared invalid, to help prevent this from happening, it is wise get an early start on your estate planning and not to include the beneficiaries in the execution or planning process.

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