Probate & Trust Litigation in Central Florida

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Experience Can Make the Difference

Planning for the future can be challenging. Anything can happen after you are gone, and protecting your estate is crucial. Appointing the right Personal Representative or Trustee can help ensure everything runs smoothly. Likewise, if a loved one has passed away and you are being denied your rightful inheritance in their Estate, you need a qualified attorney fighting for you.

With years of experience, probate lawyer Jerry B. Wells knows Florida's Probate and Trust laws inside and out. He is an Executive Committee member of the Florida Bar on matters of Probate and Trust and has successfully represented Central Florida clients, including clients living in Daytona Beach, DeLand, New Smyrna Beach, Ormond Beach, Palm Coast and Port Orange, FL, in a number of Will and Trust Contests.

Typical Will and Trust Contests

Will and Trust contests usually occur between family members and there is generally one of two fact patterns:

  • First general fact pattern: The family has a prior will dividing the assets of the decedent equally among the family members, and a stranger to the family shows up in a later will as the main or substantial beneficiary of the decedent.
  • Second general fact pattern: This is similar to the first, except the Decedent leaves everything to his children equally in the first Will and a later Will gives substantially all the assets to only one of the children, while the remaining children receive little or nothing.

There are, of course, as many variations as there are family situations. Most of these situations can exist with either a Will or a Trust.

Manner of Attack For Will and Trust Contests

The law provides 3 basic methods to attack a Will or Trust:

  1. Improper Execution of the Instrument: The first method is based on improper execution of the Will or Trust. Florida has specific statutory requirements concerning the execution of Wills and Trusts. This is probably the rarest method of success, but it must always be thoroughly investigated.
  2. Incapacity of the Decedent: The person signing the Will must have the capacity to do so. Lack of capacity of the person executing the Will makes render the Will void and subjects it to being contested. The person signing the Will is called a Testator. In order to be considered competent to sign a Will a Testator must be of sound mind. "Sound mind" means the Testator has the mental ability to understand in a general way the nature and extent of the property to be disposed of and the Testator’s relation to those who would naturally claim a substantial benefit from the Will, as well as a general understanding of the practical effect of the Will as executed. The Will is presumed valid and the Contestant must prove that the Testator was not competent by a preponderance of the evidence.
  3. Undue Influence: This is the most likely grounds for a Will or Trust contest. Undue Influence insinuates that the Testator's mind was so controlled by persuasion, pressure, and outside influences that he or she did not sign his or her Will or Trust voluntarily but was influenced by another when the Will or Trust signing took place. Generally, it is necessary for the Petitioner or Will Contestant to show that the person committing Undue Influence maintained a confidential relationship with the Testator, was active in the procurement of the Will or Trust and that the person committing the Undue Influence was a substantial beneficiary of the Will or Trust. 

Many Will and Trust cases are handled on a contingency-fee basis, with some being handled on an hourly basis