Tampa & St. Petersburg Estate Litigation Attorney

Serving the Greater Hillsborough and Pinellas County Area

Most people want nothing to do with estate litigation, but probate disputes can be common, and estate litigation is often the result of people challenging wills, breaches of fiduciary duty by executors, or failure to collect past debts. There may also be issues with people’s actions as trustees or fiduciaries with alleged fraud by executors, trustees, guardians, or agents acting under a power of attorney, as well as other frequent disputes in the probate process.

If you need to create a new will or trust, an experienced Tampa estate litigation lawyer can help you through the entire Florida estate litigation process. Thomas Upchurch of Upchurch Law is an experienced Florida estate litigation lawyer who is a former Assistant State Attorney in Pinellas County and has extensive experience with many Florida probate and estate litigation disputes.

Estate Litigation Process in Florida

According to the Florida Bar, probate is a court-supervised process to identify and gather the assets of a deceased person (also known as a decedent), pay their debts, and distribute their assets to beneficiaries. The Florida Probate Code is in Chapters 731 through 735 of the Florida Statutes, and rules governing Florida probate proceedings are in the Florida Probate Rules, Part I and Part II.

Estate litigation cases often occur when there are legal objections relating to the distribution of assets or inheritances after a person dies, and some objections may result from estate plans being altered because of undue influence or other disagreements over the way an estate has been administered. Estate litigation cases can often be highly complex and require legal representation specializing in probate  and trial litigation cases.

Estate litigation may also relate to other legal objections about the distribution of assets and inheritances. Certain cases might involve trusts, some will relate to wills, and administration can be another common issue.

Timing of Estate Litigation Cases in Florida

People only have a limited amount of time to take certain kinds of actions in probate cases, making it important to retain legal counsel as soon as possible. During estate administration, a personal representative has control of an estate’s assets and may pay bills, manage investments and property, conduct sales, and distribute assets. 

While a personal representative must fulfill their duties in accordance with the terms of a will, recapturing distributed assets or losses associated with poor management can be challenging. If an underlying issue relates to the validity of a will or trust document, a trustee or personal representative who is only fulfilling their duty may be moving assets out of the reach of the people who were actually entitled to inherit through the estate or benefit from a trust. 

Protecting Rights for Undue Influence and Lack of Capacity Matters

Some of the common reasons for contesting wills include challenging the validity of a will, removal of beneficiaries from estates, or wills being executed under duress. Two of the most common kinds of issues in such cases often relate to the lack of capacity of a testator or undue influence in the creation of a will.

Wills have to be formally drafted, signed, witnessed, and executed by a person who has full mental capacity, meaning they possess the ability to comprehend their assets, beneficiaries, and the effects of their legal document. Common reasons wills may be contested on mental capacity grounds can relate to people with later-life diseases such as Alzheimer’s or dementia and other factors that might relate to diminished mental capacity.

Contesting a will for undue influence will involve a third party manipulating a person into altering a will for their own personal gain. Actions in these cases might include a person executing or modifying a will or removing one or more beneficiaries from an estate.

Thomas Upchurch is an experienced Tampa probate litigation lawyer who can offer the best advice about how to address different kinds of probate issues. He will know how to take every appropriate action in your case, and can completely assess the situation, provide legal advice concerning possible options, collect all of the evidence necessary to prove a claim, help manage all procedures, deadlines, pleadings, and other technical requirements involved, negotiate a settlement, and take the case to court if necessary.

Undue Influence in Florida

Undue influence is a cause of action in which a person challenges the validity of a testamentary document, such as a will, trust, or deed. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) was a Florida Supreme Court case that led to the creation of the Carpenter presumption, ultimately codified by the Florida Legislature in Florida Statute § 733.107(2).

The Florida Supreme Court has held that proof of a confidential relationship between a beneficiary under a will and a testator and a beneficiary’s active procurement of a will, creates a rebuttable presumption that a beneficiary had unduly influenced a testator in the making of a will. The court identified seven nonexclusive facts, proof of which will constitute active procurement of a will: 

• The presence of a beneficiary at the execution of a will
• The presence of a beneficiary on the occasions when a testator expressed a desire to make a will
• A recommendation by a beneficiary of an attorney to draw a will
• Knowledge of the contents of a will by a beneficiary prior to its execution
• Giving instructions on the preparation of a will by a beneficiary to an attorney drawing a will
• Securing witnesses to a will by a beneficiary
• Safekeeping of a will by a beneficiary subsequent to its execution

Since there is not a specific number of factors necessary to invoke a presumption, these matters will be within the discretion of a trial court. The list above may also include people isolating testators and disparaging family members, mental inequality between decedents and beneficiaries, or the general reasonableness of a will or trust provisions.

If a Carpenter presumption is invoked, the burden shifts to a defendant to prove, by a preponderance of the evidence, the nonexistence of undue influence. Florida Statute § 733.107(2) establishes that it is a will proponent’s burden to prove the absence of undue influence, also known as “proving a negative.”

A presumption of undue influence in Florida shifts the burden of proof from a person initiating a claim to the individual who is accused of undue influence. After a presumption of undue influence is raised, the burden of proof can be reversed and require an accused person to prove no undue influence occurred.

The burden of proof shifts to a beneficiary when the person challenging a will can prove undue influence by showing an accused person will receive a substantial benefit through a will, an accused person and testator had a confidential relationship, and an accused person was active in procuring a will. While an initial burden of proof rests with a person challenging the documents once a will or trust has been executed, a challenging person presenting sufficient evidence to give rise to the presumption of undue influence will shift the burden of proof to a proponent of a document to prove by a preponderance of the evidence that a will or trust was not the result of undue influence.

Lack of Capacity in Florida

Several elders have medical or psychiatric problems that might affect their mental and cognitive ability, and litigation, with the help of a probate litigation attorney, can try to prove a person’s lack of mental capacity. Many claims are based on a testator’s lack of mental capacity and can be some of the most common kinds of testamentary challenges. 

Old age, illness, or a mental disease such as Alzheimer’s disease do not automatically prove a lack of capacity, as people with mild to moderate dementia, or another disorder with periods of lucidity, can still be found to have had a sound mind to create a will. If a person with dementia cannot remember the identities of the beneficiaries in their will or the relationships between themselves and other people, then a person might not have had the mental capacity to make a will.

Banks v. Goodfellow (1870) was a case in which the validity of a will by John Banks, a paranoid schizophrenic, was challenged on the basis that he was insane and unable to make a will. The Banks v. Goodfellow test establishes that a testator has testamentary capacity when they:

• Understand the nature of making a will and its effect
• Have an understanding of the extent of the property of which they are disposing under a will
• Understand the claims of family or friendship involved
• Are free from any delusion of the mind that can affect their dispositions toward other people

Get Estate Litigation Help Today

Thomas Upchurch is a graduate of Shepard Broad College of Law at Nova Southeastern University who has been handling estate litigation cases for nearly two decades. He is a trust litigation attorney who understands how difficult these kinds of cases can be for people and works to help every client achieve the most favorable possible outcomes for their case.
Upchurch Law understands how complicated these kinds of cases can be, and our estate litigation attorney will know how to help people get answers to their legal problems. 

If you need help with a legal issue relating to a loved one’s will, do not hesitate to call our probate litigation lawyer at (386) 272-7445 or contact us online to schedule an initial consultation.