Articles Posted in Probate Disputes

It is a classic scenario – the evil step-mother taking everything when her husband dies even though his children were expecting an inheritance. What do you do if someone swoops your inheritance, or your expectation of an inheritance, out from under you? Florida recognizes a cause of action for tortious interference with an inheritance or expectancy of such. See In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3rd DCA 2004). This means that if an inheritance or the expectancy of an inheritance is diverted, destroyed, or something of the like by a third party, there is a cause of action by which the person who did not receive the expected inheritance may be compensated.

Tortious interference with inheritance is defined as, “[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Restatement (Second) of Torts § 774B. There can also be many related causes of action to a tortuous interference with inheritance claim, such as breach of contract, undue influence, and unjust enrichment. A person who has been the victim of such wrongful conduct may bring an action for a constructive trust or damages.
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As people progress through different stages of their lives, their beliefs and objectives sometimes fluctuate and change. One situation in which an individual may change his or her mind is when writing a will. People often change their minds about whom to devise or bequest their property. But, what causes people to change their minds? What if someone revokes their will based on a mistaken assumption of law or fact? Is the new will effective? Does the old will get revived if the new will is ineffective?

Over the years, courts have wrestled with such questions and, resultantly, have come up with the doctrine of dependent relative revocation (“DRR”). Essentially, the courts have decided that if a testator claims to revoke his will, and he or she does so based on a mistaken assumption of law or fact, the revocation is invalid if the testator would not have revoked the initial will had he known the truth. Once it is clear to the court that the revocation of the prior will was based upon the validity of the new will, the court will apply DRR. The doctrine creates a “rebuttable presumption that the testator would have preferred to revive his earlier . . . bequests rather than let the property go by intestacy.” In re Estate of Pratt, 88 So. 2d 499, 501 (Fla. 1956).
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Even the most carefully crafted wills may someday need to be altered or revoked entirely in order to adapt to the changes in one’s life. There are three mechanisms provided by the Florida Probate Code that revoke a will: (1) by written instrument, (2) by physical act, or (3) by operation of law. These apply throughout the state of Florida, including West Palm Beach, Fort Lauderdale and Miami.

The ideal method of revocation is outlined in Florida Statute 732.505, which provides that a will can be revoked by executing another will, codicil, or other written document expressly declaring the intent to revoke a previous will. Additionally, any terms in a subsequent will revoke provisions of a previous will to the extent that they are inconsistent. Because it provides more precision and certainty over the other two methods, this method is the preferred means of revoking a will. However, because any such instrument must be executed with the same formalities as a will itself, one should always consult with a skilled attorney to ensure that the true intent of the testator is realized.

Florida Statute 732.506 allows a testator to revoke a will by burning, tearing, canceling, defacing, obliterating, or otherwise destroying the original copy. This method is not at all encouraged, as it must also be shown that the will was destroyed with the intent, and for the purpose, of revocation. Unless one destroys their will, for example, in the middle of a crowded football stadium while clearly declaring their intent to the revoke the will, it will always be a challenge during the probate process to prove intent to revoke. Thus, this self-help method should only rarely be employed and one should instead consult with a professional.