Jan 17, 2019 - Estate Planning by Hoffman & Hoffman
A will is an important legal tool that allows people to plan how their assets will be distributed when they die. One of the primary benefits is that having a will largely prevents a judge from deciding where your assets will go for you and avoids a clunky legal process known as probate.
Florida estate planning law is designed in a way to best carry out the wishes of the person who signed the will. In some cases, however, a person may be wrongly pressured or influenced in deciding where his or her assets will go. That may be because someone took advantage of the person’s sickness or medical condition or used a personal or professional relationship as leverage.
The good news is that loved ones have the legal right to contest a will for what courts call “undue influence.”
Challenging a Will for Undue Influence
The burden is on the person challenging the will to create a presumption of undue influence. That often includes by presenting evidence and witness testimony. Once the presumption is established, the burden shifts to the alleged undue influencer to prove his or her innocence.
To prove undue influence, you first have to show that the person who allegedly used that influence substantially benefitted from the will. Often that can be done by showing that the person received a substantially larger portion of the assets than he or she would have under previous versions of the will or through probate.
You also have to show that the undue influencer had a “confidential relationship” with the testator, or person who signed the will. Courts typically look for a family, household or close business relationship to satisfy this requirement.
Finally, you have to establish that the undue influencer “actively procured” certain provisions in the will. That can be the most difficult step. It often includes proof that the influencer was there when the testator expressed interest in creating the will and when the person signed the will, as well as that the influencer gave preparation instructions to the testator’s attorney and helped secure witnesses to the signing of the will.
Contact the Miami Estate Planning Attorneys at Hoffman & Hoffman P.A.
If you or a loved one is considering challenging a will or planning your estate, it’s vital to seek to counsel of a seasoned legal professional. An attorney guide you through the legal process, ensuring that you understand your rights and options every step of the way and building the strongest possible case
Hoffman & Hoffman is a South Florida estate planning law firm whose Miami estate planning lawyers help people manage their assets and decide how property will be distributed in the event of their death. We are pleased to represent clients throughout South Florida, including in Ft. Lauderdale, West Palm Beach and Coconut Grove. Contact us at 305-372-2877 to speak with an attorney.