What May Invalidate An Estate Plan?
By Attorney Truman Scarborough
An estate plan may be successfully challenged if:
1] The document was forged.
2] There was fraud because false information was presented to the person creating the estate plan with an intent to deceive.
3] The Will or Trust was signed under duress (force or coercion).
4] There was a failure to include essential provisions. For example, a Will or Trust must address what happens to the balance of the assets (the residual) after specific bequests are distributed.
5] There was ambiguous or conflicting wording in a critical component of the Will or Trust.
6] There was a failure to sign or witness as prescribed by Florida Law. For example, there must be two witnesses to a Will who are required to sign in the presence of each other.
7] There was a lack of testamentary capacity. This requires an understanding of: 1) the nature and extent of one’s assets, 2) one’s natural heirs, and 3) the way property will be distributed under the proposed Will or Trust.
8] There was an insane delusion. This is believing something that simply is not factually true. A person can possess testamentary capacity, yet suffer from an insane delusion. Where lack of capacity would nullify the entire Will or Trust, an insane delusion may impact only part of the document.
9] There was undue influence. In Florida a Will or Trust is null and void if obtained by undue influence. Under Florida law, there is a presumption of undue influence when the person exercising the influence: 1) substantially gains as a beneficiary, 2) occupies a confidential relationship (which could be a child, caregiver, or adviser), and 3) was “active in procuring” the gift, which includes involvement with the attorney who prepared the will or trust.
10] There was a failure to make a new Will / Trust after a marriage. Unless there is a Nuptial (Marital) Agreement, the new spouse has a right to receive what a surviving spouse is entitled to when there is no Will. When there are children from a prior marriage it would be one-half.
11] There was a failure to recognize a surviving spouse’s rights under Florida Law. Regardless of what a Will or Trust provides, without a Nuptial (Marital) Agreement the surviving spouse has rights to:
The Homestead: If the home is titled just in the deceased spouse’s name the surviving spouse receives a life estate or may elect to take a one-half interest in the home.
Exempt Property: A surviving spouse is entitled to household furniture, appliances, and furnishings up to $20,000, plus two of the deceased spouse’s vehicles.
An Elective Share: The surviving spouse may elect to receive 30% of the deceased spouse’s property that is not going to the spouse by some other means. This includes probate assets, property in revocable trusts, joint accounts with survivorship rights, payment on death (POD) accounts, transfer on death (TOD) accounts, retirement plans, and transfers within one year of death.
To guard against the Will / Trust being overturned after the client’s demise, attorneys take various precautions. For example, to avoid an allegation of undue influence, the attorney usually will not want anyone but the client present when the estate plan is discussed.
For further information on estate planning, you may be interested in Attorney Truman Scarborough’s Booklet on Estate Planning in Florida. It is available without charge or obligation by calling (321) 267 – 4770. His office is located at 239 Harrison Street, Titusville, Florida.