Posts tagged "duress"

Contesting a Will: the Role of Undue Influence

More and more often these days, it seems that after a family member or loved one dies, those left behind are unhappy with the way the deceased's estate is to be distributed through their Last Will and Testament. Often, the persons feel that their loved one has been taken advantage of, perhaps due to their vulnerability or for other reasons. When a family member or loved one decides to challenge a Will (or a Trust), one of the most common grounds is based on what is known as "undue influence." Florida has a statute, Section 732.5165, Fla. Stat., which specifically provides that "[a] Will is void if the execution is procured by fraud, duress, mistake, or undue influence."

Contesting a Will or Trust as a Result of Undue Influence in Florida

In Florida, a Last Will & Testament or a Trust can be contested for a number of reasons, including fraud, duress and undue influence. In the case of undue influence, if a substantial beneficiary under a Will or Trust occupies a confidential relationship with the person who executed the instrument and is active in procuring the contested Will or Trust, a presumption of undue influence arises. So what does it mean that a person is active in procuring?

Proving Undue Influence in Florida Will Contests

A "Will contest" is an action to challenge the valuidity of a Last Will and Testament. In Florida, perhaps the most common basis for challenging a Will is grounded on allegations of "undue Influence." Undue influence, such as would void a Will, has been defined to include over persuasion, coercion, or force that destroys or hampers the free agency and will power of the person making the Will.

What happens if a Will is set-aside or voided?

Beneficiaries, or those excluded from being a beneficiary, of a person's Last Will and Testament sometimes file litigation to challenge the Will. This is usually done based on allegations of undue influence, fraud, coercion or duress. So what happens if the challenge is successful and the Will is set-aside? Does that mean a prior Will comes back into effect or does it mean the person died intestate, i.e. with no Will? As with many things in the law, the answer is "it depends."

In Florida, can I contest a Will before the person dies?

With people living longer and with the ever increasing numbers of "blended" families, it is not uncommon for a family member to get suspicious about another family member having prepared or changed their Last Will and Testament in a way that may be unfavorable. As a result, it is not uncommon for attorneys to be asked, "can I challenge Grandma's Will now--while she is still alive?"

In Florida, can I contest a Will before the person dies?

With people living longer and with the ever increasing numbers of "blended" families, it is not uncommon for a family member to get suspicious about another family member having prepared or changed their Last Will and Testament in a way that may be unfavorable. As a result, it is not uncommon for attorneys to be asked, "can I challenge Grandma's Will now--while she is still alive?"

In Florida, can I contest a Will before the person dies?

With people living longer and with the ever increasing numbers of "blended" families, it is not uncommon for a family member to get suspicious about another family member having prepared or changed their Last Will and Testament in a way that may be unfavorable. As a result, it is not uncommon for attorneys to be asked, "can I challenge Grandma's Will now--while she is still alive?"

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