Will and Trust Contests in the Real World

By: Glenn M. Mednick

People are often shocked to learn that the wills and trusts they have spent so much time developing with the assistance of their estate planning professionals can be challenged following their death. Individuals who are the intended beneficiaries of the estate plan created by their parents or other relatives may also be distressed to learn that a document under which they would be a recipient is being challenged and may be set aside by a court if the challenge is successful. However, if the right action is taken during or prior to the creation of a will or trust, the possibility of a challenge or the likelihood of a contest being successful can be greatly reduced.


The right to devise property is a property right protected by Article I, Section 2 of the Florida Constitution. The requirements for execution and qualification of a will are governed solely by statute. Florida Statute §732.501 provides that the person making a will, known as the testator, must be at least 18 years of age and of sound mind. An amendment to the statute effective January 1, 2002, provides that an emancipated minor may also make a will. The requirements for execution of a will are statutorily mandated and must be strictly followed. In Florida, every will must be in writing and be executed by the testator at the end or have the testator’s name subscribed at the end by some other person in the testator’s presence and by the testator’s direction. The testator must sign the will or acknowledge that he or she previously signed or that another person subscribed his or her name to it in the presence of at least two attesting witnesses. The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

Aside from the need for meeting the statutory requirements for proper execution and that the testator be of sound mind, statutorily recognized grounds for challenging a will in Florida are fraud, duress, mistake, or undue influence.

As previously mentioned, a testator must be of sound mind, which is referred to as testamentary capacity and means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty, and the practical effect of a will. Testamentary capacity refers to competency at the time the will is executed, and a testator who is weak of mind may execute a will during a lucid interval. Together with failure to comply with the statutory formalities for execution or lack of testamentary capacity, undue influence is the ground most likely to be used to attack the validity of a will. Undue influence means that the testator’s mind was so controlled by persuasion, pressure, or other outside influences that he or she did not act voluntarily but was subject to the will of another when execution took place.

In addition to the substantive grounds for challenging a will, the procedure applicable in will contests is also governed by statute. In all proceedings contesting the validity of a will, the burden is initially on the proponent of the will (normally the person/petitioner seeking to have the will admitted to probate and a personal representative appointed) to establish prima facie its formal execution and attestation. Thereafter, the burden of proof shifts to the contestant to establish the grounds on which the probate of the will is opposed or the revocation is sought. The aforementioned distinction drawn in Florida Statute §733.107 refers to the time period in which the contest is initiated. In most cases, a will would be admitted to probate and a personal representative appointed to administer the estate before any relatives are aware of the existence of the will or the petition to admit the subject will to probate. Revocation of probate refers to a proceeding to challenge the validity of a will after the will is admitted to probate and the personal representative is appointed.

According to Florida law, the personal representative must promptly serve a copy of a document referred to as a notice of administration to the decedent’s surviving spouse, beneficiaries, the trustee of any revocable living trust, and each beneficiary of that trust, if each trustee is also a personal representative of the estate. Following service, any interested person is limited to a period of three months after the date of service to object to or challenge the validity of the will or the qualifications of the personal representative, venue, or jurisdiction of the court. When a proceeding to revoke the probate of a will begins, the personal representative is directed by Florida law to proceed with the administration of the estate as if there were no revocation proceeding, except that no distribution may be made to beneficiaries that would violate the rights of those who would receive the property if the will were not being challenged. If possible, a caveat should promptly be filed after death by an heir who has knowledge of an instrument he or she may later seek to challenge to preclude the personal representative from being appointed and utilizing the assets of the estate to defend the will contest.

It is important to remember that, in most cases, there is no right to a jury trial in a will contest. A will contest is tried before either a probate judge in a circuit that has separately designated probate divisions or a general circuit court judge in counties that have not created a separate probate division.


The use of pour-over wills and revocable trusts to accomplish testamentary disposition has increased dramatically. While there are many similarities between a will contest and trust litigation, there can be substantial differences. All Florida trusts executed after September 30, 1995, must be executed by the settlor with the formalities required for the execution of a will in this state. Chapter 736, Florida Statutes, establishes a new Florida Trust Code effective as of July 1, 2007, unless otherwise provided therein. One of the changes implemented thereby is Florida Statute §736.0402, which requires a settlor to have capacity to create a trust. Moreover, the capacity required to create, amend or revoke is the same as that required to make a will. Florida Statute §736.0601. The same elements that apply to a will contest are applicable to a trust contest. Under Florida Statute §736.0406 fraud, duress, mistake, or undue influence may be asserted as grounds to contest the validity of the trust, in whole or in part. Any part of the trust procured by such means is void, “but the remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons.” The considerations pertaining to proof of fraud, duress, and undue influence in a will contest are applicable in trust contests.

Will contests or trust contests based on mistakes are predicated on the testator’s or settlor’s execution of one instrument under the belief that he or she was executing another. In the law of wills, it is virtually impossible to reform a defectively drafted will or scrivener’s error. Conversely a landmark Florida appellate case held that a trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake as long as the reformation is not contrary to the interest of the settlor. Judicial modifications of trusts are now authorized by statute, as are nonjudicial modifications under circumstances designated in the Florida Trust Code.

One major distinction between the procedural considerations in will contests and trust contests is the method for commencement. A will contest will be brought in conjunction with the administration of the estate. A proceeding concerning a trust must be commenced by filing a civil complaint and is governed by the Florida Rules of Civil Procedure. An action to contest the validity of all or a part of a trust may not be commenced until the trust becomes irrevocable. In most cases, this refers to the death of the settlor, but a trust may in some circumstances be deemed by a court to be irrevocable prior to death. For example, if an individual has previously been adjudicated to be incapacitated in conjunction with a guardianship proceeding, then an action can be brought by the guardian of the property of an incapacitated settlor upon court approval. See, Florida Statutes §§736.0207 and 744.441(11). Because a statutory procedure is available to file a suggestion of capacity after being adjudged incapacitated, it would be necessary to exclude any possibility of capacity being restored if a trust contest is commenced prior to the death of the settlor.

As is the case in will contests, a provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument is unenforceable, and the trustee is required to proceed with the administration of the trust as if no proceeding had been commenced except no action may be taken and no distribution may be made to a beneficiary in contravention of the rights of people who may be affected by the outcome of the proceeding. Florida Statutes §§736.08165 and 736.1108.


It is often said that we live in a litigious society. Evidence of that can easily be seen in the frequent will and trust contests commenced in Florida. While at first blush it would appear that the financial motivation for a will or trust contest is no different in Florida than in any other state, the reason that these actions appear to be more prevalent in Florida may be closely linked to the large percentage of retirees in our population. Some probate or trust litigation may result from an elderly individual’s reliance on other people to act as caregivers in the absence of family members located in close geographic proximity. As the elderly person becomes more reliant on and trusting in these unrelated individuals, the caregiver may be the unintended recipient of alleged gifts, such as a joint bank account established as a survivorship account for convenience purposes only.

Some of the contests observed in Florida result from caregivers who condition their continued care of the decedent on being made a beneficiary of their will or trust, and more egregious cases result from the caregiver initiating the process to either amend or change the decedent’s testamentary plan. Prudence would dictate that family members with elderly parents living in Florida should closely monitor the individuals who are assisting their parents with their physical needs or financial affairs to ensure that they are not being exploited.

In sharp contrast to cases of exploitation of the elderly, will and trust contests may result from a failure to communicate the decedent’s estate plan to the natural objects of his or her bounty. It is not uncommon for a child who is due to receive a disproportionately small percentage of the estate in contrast to other similarly situated family members, often including siblings, to believe that this disparity was the result of the testator’s or settlor’s unsound mind, the exercise of undue influence, or any of the other statutorily recognized grounds for a will or trust contest. While many parents prefer not to discuss the financial details of their estate plan with their children, their so-called “children” are in many cases middle-aged individuals with grown children of their own, and their reactions to being disinherited in part or in full are to be anticipated. Communicating to one’s heirs the reasoning behind his or her estate plan may in some circumstances reduce instances of trust or will contests that would otherwise result.

As an alternative to-or an addition to-lifetime disclosure of a testator’s or settlor’s testamentary scheme prior to death, actions can be taken to document the reasons why an heir shall receive a lesser share or no share of the assets under the will or trust. If circumstances permit, discussions with the decedent prior to the execution ceremony wherein the testator or settlor explains why he or she intends to make certain testamentary or inter vivos dispositions that later could be called into question may be videotaped and otherwise recorded, and/or a legal videographer may be hired to record the execution ceremony. While videotaping pre-execution discussions or the execution ceremony may be advantageous, it can also act as a double-edged sword in the event that anything should be revealed on the audio or video tape that could later be utilized in support of a will or trust contest.

In addition to recording discussions with the decedent and/or the execution ceremony, the decedent should document the reasons for his or her intended testamentary or inter vivos dispositions with his or her attorney so as to create a record through the drafter’s file. In cases where it is anticipated that a challenge may result and testamentary capacity could become an issue, the testator’s or settlor’s physician can be asked to attend the execution ceremony and provide an affidavit as to capacity, or an independent mental health examination can be conducted before the execution ceremony. Finally, the attorney should attend the execution ceremony and, if possible, bring office staff to act as witnesses to ensure compliance with all the statutory requirements for execution.

While lawsuits may always be prevalent in our society, giving greater thought to the reactions of your heirs to your testamentary plan-along with taking appropriate actions-may help reduce the likelihood of probate or trust litigation after you are gone.

Practice Areas

Probate Administration & Litigation

Wills & Trust Administration & Litigation

Guardianship Administration & Litigation

Commercial & Real Estate



Contact Us





SPAM validation

Serving clients in Boca Raton, Boynton Beach, Deerfield Beach, West Palm Beach and throughout the Tri-County Area of Palm Beach County, Broward County and Miami-Dade County.


12856 Whitehorn Way
Boynton Beach, Florida 33473-3313

Phone: (561) 614-2770
Click Here For Directions

Practice Areas

Wills & Trust
Commercial & Real Estate Litigation
Negotiation of Contracts

Quick Links

Attorney Profile
FAQ Videos