Florida Probate Litigation Lawyer Blog
The creation and execution of a Last Will and Testament is often a formal, thorough process. The creation of a Will is best done with the advice and assistance of a lawyer, and the execution of a Will is also best done in the presence of that lawyer as well as other required witnesses. These formalities help ensure the Will accurately states the testator’s wishes and help prevent challenges to the will after the testator passes away. While formal creation and execution is the ideal scenario, it is not always the reality.
Sometimes, testators create and execute their Will at the last minute, possibly even on their deathbed when they know that death is imminent. This may happen because the testator fell ill suddenly, failed to execute a Will until they were elderly, or sought to change a previous Will before it was too late. Due to the circumstances that give rise to the creation of deathbed Wills, they are often contested after the testator passes away.
For a Will to be valid in Florida, it must be written, signed by the testator or by someone at their direction, and signed by two attesting witnesses. Florida does not recognize oral or handwritten Wills. If a testator attempts to express a Last Will and Testament simply by speaking their wishes, that oral expression will not constitute a valid Will under Florida law. Additionally, if a testator attempts to express a Last Will and Testament simply by writing down their wishes, that document likewise will not be valid under Florida law.
However, if a deathbed Will is created in accordance with Florida law, meaning it is in writing and signed/witnessed by all the required parties, it may be valid and admissible to probate. Nonetheless, given the circumstances of its creation, it is possible that the Will may be challenged after the testator’s death for any number of reasons, including lack of testamentary capacity or the basis of undue influence. Essentially, because a deathbed Will is created and executed “at the last minute,” the document may be more susceptible to a will contest.
For instance, a deathbed Will may be contested for lacking the required “will act formalities” -i.e., the requirements that the will be in writing, signed at the end by the testator in the presence of two witnesses, and signed by the two witnesses in the presence of each other and in the presence of the testator. For example, if a deathbed Will is not properly witnessed, the Will may not be admissible to probate or may later be challenged by potential intestate heirs. Because deathbed Wills are created with obvious time constraints, they are potentially more susceptible to a failure to comply with the proper formalities, particularly if they are prepared and executed without the advice and assistance of an estate planning lawyer. That is why it is important to give yourself plenty of time to create a Will and execute it properly in advance.
Another challenge that may arise is an allegation of undue influence. Undue influence is “over-persuasion, coercion or force that destroys or hampers the free agency and will power of the testator.” Newman v. Smith, 77 Fla. 633, 666 (Fla. 1918). In the case of In re Estate of Carpenter, a woman prepared and executed her Will four days before her death, leaving her entire estate to her daughter and disinheriting her three surviving sons. The Supreme Court of Florida explained that a presumption of undue influence arises “if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will.” 253 So. 2d 697, 698 (Fla. 1971). This issue may arise when someone is near-death because they are in a vulnerable state, and they may be surrounded by caregivers who seek to benefit from their death and do not actually have their best interest at heart.
A Will may also be challenged as fraudulent. Fraud occurs when there is an intentional perversion of truth for the purpose of making the testator rely on it. Someone who is near-death may be more vulnerable to misrepresentations that lead them to make decision about their Last Will and Testament. For example, a testator may be tricked into thinking a family member does not want to see them in their final days, which can cause them to disinherit that person, when in reality that person would want to see the testator but does not know of the testator’s declining condition.
Another challenge the Will may be more susceptible to is lack of testamentary capacity or insane delusion. When a testator is near death, their mental capacity may be diminished. This makes it more likely that their Will could be challenged for lack of testamentary capacity. After the testator passes away, interested persons may come forth alleging that the testator was not of sound mind in their final days. If this claim prevails, the Will could be invalidated.
To avoid having your Will susceptible to contestation and probate proceedings, it is important to consult with a Miami estate planning attorney early before any health concerns arise. Creating a Will early with the help of an experienced estate planning lawyer will prevent challenges down the line and ensure your wishes are honored in the future. The Miami estate planning attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with any estate planning needs.
