It’s the Law: How can I challenge my mother’s will?

Q: My mother just died. In the weeks before she died, my brother was with her a lot. I just found out she changed her will a few days before she died from leaving her estate equally to all of her children to leaving her estate entirely to my brother. I am not too happy and wonder if there is any way to challenge her will?

A: Florida courts have long held that a properly executed will should be enforced, unless it is clearly shown that the will was a product of deception, undue influence or other wrong doing. Florida Statutes provide that a will, or a portion thereof, procured by undue influence is void.

The Florida Supreme Court has defined undue influence as over persuasion, coercion or force that destroys or hampers the free agency and willpower of the testator. If undue influence is proven, the Court may invalidate the will or that portion which is the product of undue influence. In the 1971 case of Carpenter versus Carpenter, the Florida Supreme Court provided a non-exclusive list of criteria which are relevant in reviewing the issue of undue influence.

The criteria are (A) presence of the beneficiary at the execution of the will, (B) presence of the beneficiary on those occasions when the testator expressed a desire to make a will, (C) recommendation by the beneficiary of an attorney to draw the will, (D) knowledge of the contents of the will by the beneficiary prior to execution, (D) giving of instruction on preparation by the beneficiary to the attorney drawing the will, (F) securing of witnesses to the will by the beneficiary and (G) safekeeping of the will by the beneficiary after it is signed.

Usually, undue influence cases involve a beneficiary receiving a larger portion of the estate than might otherwise be expected, as in your case. In some cases, the undue influence is exerted to obtain a benefit for a third party such as a child or spouse of the person exerting the influence.

Once it is shown that the trappings of undue influence are present, the person exerting the influence and/or the beneficiary of the influence must introduce evidence to establish by a greater weight of the evidence that the will was not a product of undue influence.

Undue influence differs from mere influence. Mere influence is not enough. Influence arising from affection, attachment of one person for another or even the desire to gratify is not undue influence that will invalidate a will. If a will is changed to show appreciation for a particular beneficiary, the will will generally be enforced unless it can be shown that the beneficiary exerted undue influence.

The facts of each particular case must be examined to determine if undue influence was present. The recent case of RBC Ministries versus Thompkins is illustrative.

RBC was a substantial beneficiary under the decedent’s 1997 will. In 2004, the decedent executed a new will in which RBC was replaced by Thompkins as the substantial beneficiary. When Thompkins tried to probate the later will, RBC petitioned to revoke probate of the will on ground of undue influence.

The trial court issued an order in which it found that RBC could not prove its case and probate should continue. That decision was reversed on appeal and the trial court was ordered to hold a full trial to consider evidence.

In reversing the trial court, the appellate noted that Thompkins was present at execution of the will, was present when the decedent expressed a desire to make a will and actually drafted the will on her home computer. Thompkins coordinated signing and witnesses for the will and kept the will after it was signed.

The court found it important that Thompkins admitted a confidential relationship with the decedent and failed to show beyond dispute that she was not active in procuring the will.

The appellate court held that the evidence established a presumption of undue influence. Once the presumption was established, Thompkins was required to provide a reasonable explanation of her active role in the decedent’s affairs after which the trial court was to decide the case with the greater weight of the evidence.

As with most legal matters, timely pursuit is important. Facts of each case and presentation of the evidence will greatly affect the outcome. You should promptly retain an experienced attorney to avoid loss of any rights by the passage of time and to discuss the facts of your particular situation to determine if legal action should be pursued.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 1

hourigan82247 writes:

Shoulda spent more time with her when she was with you. Money always tears families apart.

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