Southwest Florida

How Can Mom Stop Someone From Contesting Her Trust or Will?

Will contest probate litigation
Unhappy children often initiate Will contests and probate litigation.

Short answer: In Florida, she can’t.

There’s absolutely no way to prevent someone from contesting a Will or Trust in Florida. In fact, our laws state that provisions in those documents (called Contest, or No Contest, provisions) that say that if the document is contested, that person will get nothing, are null and void. Florida judges will allow almost anyone to file a lawsuit – the question is whether they’d win. That would be a discussion for the person filing the lawsuit and the attorney they hire.

If someone decides to contest a Will or a Trust, it doesn’t really matter whether it’s a patchwork of amendments or a nice, neat restated trust. There are only three ways to contest a Will or Trust in Florida:

  1. Prove that Mom was incompetent at the time of execution of the offending document;  
  2. Prove that someone pressured Mom to execute documents that hurt the person filing the lawsuit and benefitted the person who is alleged to have influenced Mom; or 
  3. Prove that the documents weren’t executed in accordance with FL laws (next to impossible when executed in an estate planning attorney’s office). 

There’s really no way to “prove” competence. Florida law assumes a person is competent when they sign an estate planning document and puts the burden of proof on the person who says that person lacks competence.

Contests can’t happen until after the death of the person who signed the document. This is basically what they’d have to prove:

  • The deceased didn’t understand who his or her closest surviving family members were;
  • The deceased didn’t understand the kind, nature and extent of the property he or she owned;
  • The deceased didn’t understand that they were executing a will or trust that would transfer their property to the recipients upon his or her death;
  • The deceased didn’t understand the effect that executing a will or trust would have on his or her estate.

So, while anyone can contest a Will or Trust in Florida if they think they have a case, they first have to file the legal complaint in the manner and time prescribed by Florida laws, and they would have to pay their own lawyer from their own funds (not what’s allegedly going to be left to them in the contested Will or Trust). And then the estate would also have to pay another lawyer to battle this out in court, thereby reducing the amount all the potential beneficiaries would receive.

Probate litigation is an ugly, expensive, and time-consuming situation, but, sadly, sometimes it’s unavoidable when bad actors do bad things.

Manasota Estate Planning does NOT do any type of litigation or mediation, but we could certainly refer to you very capable attorneys in the Sarasota and Manatee County areas who do.

You wonder whether your granddaughter will think of you fondly when you’re not around anymore.

You want to make sure someone will love and care for your dog, horse, or parrot when you can’t.

Your spouse doesn’t share your love for guns, and you fear your collection could be sold for almost nothing – or even destroyed – instead of being passed on to your children or others who share your passion.

Contact us today. We can help.