From time to time, the personal representative, trustee, or one of the beneficiaries expresses concern that the will or revocable trust will be challenged. This is not a common occurrence, as it happens infrequently, but can be serious when a challenge does arise. Since a will or trust cannot be challenged until the person who has created and signed the document has died, he or she obviously cannot speak for him or herself, so prosecuting a challenge or defending it can become problematic.

So it becomes important to understand how a will or trust can be challenged. There are generally three main avenues to challenge a will or trust. The first (and less frequent method) is to allege that the documents were not properly signed and witnessed in accordance with the state law where they were signed. This is usually a factual based challenge—and one that is more black and white than the other two avenues.

Improper execution is more common in instances where people created their own wills or trusts, including using online services. The proper signing of a will or trust requires witnesses who sign in the presence of the testator and of each other. Sometimes these requirements aren’t met and therefore the will or trust may be invalid.

Another improper execution occurs when the Testator/Settlor attempts to change documents by lining through and adding provisions on their own. These changes are usually not valid as well, and are ripe for challenge.

The second most common challenge is to allege that the decedent lacked capacity at the time that he or she signed the will and/or trust. This method most frequently occurs when the decedent suffered from a mental disability such as dementia or Alzheimer’s disease at the time any will, trust, amendment, or codicil was created. It also may occur when the decedent signed documents in a hospital or under hospice care while heavily sedated.

In this instance, there are usually depositions and discovery related to the decedent’s condition at the time of the creation of the document under review. A judge will ultimately determine the outcome, or the parties to the dispute may settle rather than going through prolonged litigation that can take years and result in thousands of dollars of attorney fees and costs.

The third and most frequently alleged challenge has to do with undue influence. Here, allow me to illustrate this cause of action by reviewing a case settled in February 2008 by the Florida Second District Court of Appeals defining the presumption of undue influence. This is the most significant case since the 1971 Florida Supreme Court ruling in the Carpenter case that set the standards a claimant must meet to create the presumption that undue influence occurred.

The presumption of undue influence is said to occur when certain factors are present. A Will (and by reference to a will I include trusts)—or a portion of it—produced by undue influence is void. If a substantial beneficiary under the will had a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises. Here are a few of the nonexclusive criteria established by the Florida Supreme Court when determining whether undue influence has occurred:

  1. The beneficiary is present at the execution of the will, or was present when the testator expressed a desire to make or change her will;
  2. The beneficiary recommended the attorney who drew the will;
  3. The beneficiary had knowledge of contents of the will prior to its execution;
  4. The beneficiary provided the attorney instructions to draw the will;
  5. The beneficiary secured the witnesses to the will;
  6. The beneficiary had possession of the will after its signing.

Will contestants are not required to prove all of the listed criteria. The court decides when any of the factors are present whether the presumption of undue influence has occurred. The presumption shifts the burden of proving the will valid onto the party who has exerted the influence. This places them in a difficult position—they must prove the nonexistence of a presumed fact. This can be a very difficult hurdle.

In Tompkins v. RBC Ministries, the Florida Second District Court of Appeal ruled that Barbara Tompkins had exerted undue influence over Lewis A. Simoneaue. Ms. Tomkins was present at the execution of the will. She was present when the decedent expressed a desire to make a will. She did not recommend an attorney to draw a will; rather, she drafted it on her home computer. She was therefore aware of its contents prior to its execution. Tompkins secured the witnesses to the will, who were neutral parties according to the court. Finally, Tomkins had possession of the will after its signing.

Since Tomkins was a substantial beneficiary under the terms of the will, these terms were deemed voidable by the court under the presumption of undue influence.

It’s important to know how these sorts of cases arise. Proving something didn’t happen is harder than proving something did.

With all of that said, keep in mind that challenges to a will or trust are rare. But if one does arise, we will discuss the necessary steps that the trustee/personal representative should take.

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