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Whe a will is brought before a Florida probate judge for admission to probate and the appointment of a Personal Representative, things seem straightforward. You would think things go smoothly from there; just follow the instructions – they are written out for you – settle the estate’s claim and distribute to the beneficiaries. Wills are presented to probate judges in Broward, Miami-Dade, and Palm Beach counties every day — and most proceed through the probate process without a problem, just as any person with a good estate plan in place would have expected.

However, every year in Florida, many Wills are challenged, and there’s no way to know at the time of execution, or filing for probate, if somebody out there is going to bring a Will contest for some reason. The P.R. takes on the job knowing they will have duties like paying the tax and making an inventory of the property; they may be surprised to discover that the job can also include defending an ugly lawsuit.

If an heir or beneficiary suspects that the Will does not truly voice the final wishes and desires of the person who passed away, and it has already been filed in a probate court, then they may be able to file a formal challenge to the admitted will and seek its revocation from probate. This is called a “will contest,” and it is a full-on lawsuit filed in the probate proceeding. If one has been appointed already, the Personal Representative essentially sits at the defense table to fight for the will as probated, while the contesting beneficiaries act as plaintiffs, arguing for its revocation in favor of another will, or to let the estate pass under the laws of intestacy. The probate judge has the final say in what to do with the probated will; there are no jury trials for Florida will contests.


Is there evidence of undue influence to support a will contest? That’s the question to answer before a lawsuit is filed.


How Complex is a Will Contest?

Depending on the size of the estate, the relationship of the parties, and even the aggressiveness of the attorneys retained to handle it, it can be a very big deal to file a will contest. They are emotional proceedings that can and do tear families apart. Additionally, they can be complicated proceedings that go on for years and rack up tens of thousands in legal fees. Yet in other situations, they are less complex, and the answer is obvious. It depends upon how much evidence will be needed in the form of witnesses and documents and the fact and legal issues involved.

Small will contests can take less time and less money. These are more likely to be filed. One of these smaller contests are those that focus upon a narrow time window, like the events that happened the day that the will was signed. However, before any will contest is teed up, it’s important to evaluate its likelihood for success as well as its costs emotionally and in familial relationships.

Main Beneficiary Is Present When the Will is Signed

What if the primary beneficiary of the will was present when the contested will was signed? The mere fact that they were there, in the room, when the will was signed by the testator may be enough for lots of folk to suspect the worst. Add to that scenario a beneficiary who helped with the preparation of that will in some way, and things get even dicier.

Florida law may even come into play. A legal presumption of “undue influence” may be asserted by the will contestants here. They may argue that there’s been some manipulation of the deceased person by the person who was there at the time the will was finalized and who now stands to inherit most, if not all, the estate’s assets.

If they can establish this legal presumption, then the will is presumed to be tainted unless the beneficiary can prove otherwise. The burden shifts to the beneficiary to prove they did nothing wrong. It’s a slam dunk for the will contestants.

However, whether or not the judge presumes that this beneficiary illegally influenced the testator is the big question. Just because the will contestants are upset and sure that there’s been wrongdoing, this does not mean that the legal presumption they argue will be applied.

Suspicion can be raised when a beneficiary takes part in preparing and executing of a will from which he or she inherits, but that is not enough under Florida law to invalidate the will or even to raise the presumption of undue influence.

Why? Because of the person who died. The judge will consider the testator.

Even if that beneficiary helped get the lawyer who drafted the will, as well as being in the room when it was signed and having a detailed knowledge of the will’s contents, that’s not going to be enough for the contestants to get the will tossed out. Evidence that the person who passed away was of an independent mind, and knew what he or she was doing in that document, will be enough for the judge to honor that will and rule against the will contest.

Case study: The Fiercely Independent Doctor and Her Sons’ Unsuccessful Will Contest

Consider the case of the Florida doctor whose daughter was present when the doctor’s will was signed.

In the case of Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. Dist. Ct. App. 2003),

Dr. Zevart Manoyian died on Christmas Eve at the age of 83 years; she was a wealthy woman who left a multi-million dollar estate and a Last Will and Testament that bequeathed almost everything to her daughter Mary and a very small amount of cash to each of her three sons. Nine years earlier, she had written an earlier will that divided everything equally between her four kids.

So, the three brothers filed a will contest trying to get the probated will tossed out and the older will put in its place. Their argument? Mary had unduly influenced Dr. Manoyian into leaving everything to her.

The evidence did show that Mary helped to get the lawyer for her mother who drew up the new will; that Mary was there when her mother signed the documents; and that she knew what the will provided both beforehand as well as after her mother signed it.

However, there was no evidence that Dr. Manoyian was manipulated by her daughter — or anyone else. Ever.

Under Florida law, for the three sons to win, they had to provide evidence that “… the free use and exercise of the testator’s sound mind in executing [her] will was in fact prevented by deception, undue influence, or other means.” In re Carpenter’s Estate, 253 So.2d 697, 704 (Fla.1971).

The reviewing court found they had zip to prove Mary “exercised any influence, let alone undue, upon her mother in making the disposition in her favor.”

Evidence of what happened on the day that Dr. Manoyian signed her new will established that Mary was only doing what her mother instructed her to do — as part of Mary’s role in taking care of her elderly mother who lived with her.

The character and personality of the testator was key here. Evidence was provided that mother knew daughter needed financial help while her sons were independently wealthy in their own right and didn’t need her money. Witnesses testified that Dr. Manoyian was clear in explaining why she was doing what she was doing in her bequests.

And there was evidence of Dr. Manoyian’s fierce personality. From the court:

“Dr. Manoyian, a remarkable person who was one of the first female physicians in Florida, was an indomitable, fiercely independent individual, who was peculiarly unsusceptible to the influence of others, and who retained that individuality and strength of mind (and even practiced medicine) after she was diagnosed with terminal stomach cancer and up to perhaps only a few weeks before her death.”

Need to Evaluate a Potential Will Contest?

You may suspect that a loved one was unduly influenced in how they left their property in the Last Will and Testament that was entered in probate.  However, before you file a will contest, it’s important to evaluate the strengths and weaknesses of your case from a legal perspective.  It’s also important to gauge the ramifications of filing a will contest upon family relationships in the future.  An experienced probate lawyer can help you here, as you decide what is best for you and what best honors your loved one who has passed away.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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