Florida Estate & Trust Litigation Blog

Trusts & Estates

Ultimate Litigation Guide to Florida Will & Trust Contests

In Florida, a challenge to the validity of a will or trust is difficult process and can generate many causes of action under Florida law. PersanteZuroweste is a law firm that  handles various will & trust contests and other estate disputes in Florida. Our attorneys are conveniently located near the Clearwater, St. Petersburg, and Tampa Bay area. Below is the ultimate litigation guide on estate plan contests in Florida.

What is a Will/Trust Contest?

A will or trust contest is exactly what it sounds like —a legal proceeding brought to challenge the validity of a will or trust. contest is usually brought to accomplish one of two goals. A friend or family member may want to invalidate a will so that all property will pass by operation of law (this is known as intestate succession). Or, a will contest be brought invalidate later will or amendment so that the property passes according to a prior valid will. A will and trust can be challenged together. 

What are the Ways to Contest an Estate Plan in Florida?

There are several grounds for bringing a contest action in Florida.

Those grounds include:

  1. Technical problems with the Will or Trust or its execution.
  2. Lacking Testamentary Capacity
  3. The estate plan was a result of Undue Influence
  4. The estate plan was executed for fraud
  5. The estate plan was signed under duress.
  6. The estate plan was resulted from an insane delusion at the time it was signed.

1. Contesting an Estate Plan on Technical Grounds

In Florida, a will must be executed with the proper statutory formalities. Attacking a will on technical grounds is usually simpler than proving that the testator lacked capacity or was unduly pressured into making the will. Although the technical grounds for contesting a will involve complex considerations, here is a brief explanation of the basics.

Age Requirement: The Testator must be at least 18 years old (or an emancipated minor) and of sound mind. If the testator meets these conditions, they may execute a will.

Statutory Formalities (Fla. Stat. § 732.502):

  1. The will must be in writing.
  2. The will must be signed by the testator (or at the testator’s direction) in the presence of two witnesses,
  3. The witnesses must sign the will in the presence of each other and the testator.

It is common for a will to include what is called a “self-proving affidavit.” This is a document that is signed under oath, and is prima facie proof that the will was executed with the proper formalities.

The same is true for testamentary trusts in Florida. In Florida, if a trust has testamentary aspects (meaning, it gives property away upon dead of the trust’s creator), then the trust must be executed with the same formalities of a will. This is a technical requirement that cannot be avoided. The Florida Legislature has made this a requirement for the validity of a trust. The applicable statute is Florida Statutes Section 736.0403.

2. Contest For Lack of Testamentary Capacity

Sound Mind

In Florida, a testator cannot execute a will unless they are of “sound mind.” 

The statute provides that: “Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.” 732.501, Fla. Stat. (2015)

What is the legal standard for testamentary capacity?

The standard appears rather simple. Testamentary capacity is merely one’s ability to understand in general way nature and extent of property to be disposed of, his relation to those who would naturally claim substantial benefit from his will, and practical effect of his will as executed. In re Coles’ Estate, 205 So. 2d 554 (Fla. 2d DCA 1968)

Courts have created a test for determining capacity:

  1. Did the testator comprehend the nature and extent of his/her property?
  2. Could the testator identify the natural objects of his bounty?
  3. Did the testator understand the purpose and effect of the will?

Additionally, it is important to know that capacity is determined at the moment the testator executed the will. The determination of testamentary capacity is a factual determination. There are two ways to establish that a decedent lacked testamentary capacity. It is well-settled in Florida that testamentary capacity can be established in two ways: “[i]t may be established by direct proof as to its condition when the will was executed or it may be established by inferences from proof of his mental condition leading up to and following the execution of the will when such proof is properly related and connected.” In re Zimmerman’s Estate, 84 So. 2d 560, 562 (Fla. 1956) (emphasis added).

Presumption of Capacity

Florida law has created a presumption that the testator had the necessary capacity to execute the will. Thus, a person challenging the will has the burden of proving that the testator lacked testamentary capacity.

Interestingly, there is a presumption of incapacity if the testator had already been adjudicated incompetent.

An incompetent adult can execute during a lucid interval

Many people are surprised to know that competency is only determined at the time the will is executed. Simply because a person has dementia, does not necessarily mean that they lacked testamentary capacity when the will was executed. Many people that suffer from mental impairments have “good days and bad days.” 

In Florida, a person who normally lacks testamentary capacity can execute a will during a “lucid interval.” A lucid interval may be applicable even when a person has been adjudicated by a court to lack mental capacity. 

A will is invalid if executed during an insane delusion.

Even if a testator is normally of sound mind, a will may be invalid if the testator suffered from an insane delusion and the will was executed as a result of that delusion.

An insane delusion is a “spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.” McCabe v. Hanley, 886 So. 2d 1053, 1055 (Fla. 4th DCA 2004)

Common Misconceptions

In Florida, abuse of drugs, alcohol, and illness is insufficient alone to find that a testator lacked mental capacity. With that said, if a testator was so drunk that he did not understand what he/she was signing, the will would be invalid as a matter of law. Age is not a factor, and the mere fact that a person is eccentric does not mean they lack testamentary capacity.

Estate Plan Contests for Undue Influence

If a will is procured by fraud, duress, mistake, or undue influence, the will is void. Fla. Stat. § 732.5165.

Of these four potential causes of action, undue influence is the most common.It is important to know that it is not just any influence. Simply asking your grandparents for a larger inheritance than your siblings is influence, but doesn’t necessarily rise to the level of being undue influence. The term undue contemplates that the testator’s mind was was not under their control, but was instead controlled by persuasion, pressure, or outside influences that were so strong that he or she did not act on their own. 

Many times, clients come to our office wit a trust that doesn’t make sense given what they knew the Settlor had once desired. The trust terms just don’t seem “right.” Of course, often they weren’t there when it was signed, but the circumstances surrounding the execution are suspect.

Maybe the beneficiary who received more had isolated and lied to the Settlor about what was going on. Maybe they took the Settlor to their lawyer to have paperwork done. All of these circumstances can point to undue influence.

Where a will’s execution is procured by undue influence, it is void. FSA section 732.5165. Undue influence displaces the true intention of the victim with that of the influencer. See In re Dukefine’s Estate, 219 So. 2d 124, 126 (Fla. 2d DCA 1969) (“The rule seems to be well settled that undue influence justifying the setting aside of a will, deed, or other contract must be such as to dethrone the free agency of the person making it and rendering his act the produce of the will of another instead of his own.”). The influencer rarely exercises their will on the victim openly, as the influencer is tasked with making those around the victim believe the contents of the instrument are truly the victim’s desires. See Gardiner v. Goertner, 149 So. 186 (Fla. 1932). As a result, undue influence tends to dwell in the shadows, and rarely  is susceptible to direct proof. In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971); In re Estate of Barker, 52 So.2d 785, 788 (Fla. 1951). Hence, undue influence may be inferred entirely from circumstances. Peacock v. DuBois, 105 So. 321 (Fla. 1925).

However, not all influence is undue. To void an instrument, the influence “must amount to fear, over persuasion, force or coercion to the extent of destroying the free agency and will power of the testator and must be operative on the mind of the testator at the time the will is executed. In such a case, the will does not speak the wishes of the testator but those of the person exercising the undue influence.” Beatty v. Strickland, 186 So. 542, 544 (Fla. 1939) citing Redfearn on Wills and Administration of Estates in Florida, page 60, Sec. 46.

There are three elements to establish in order to establish a presumption of undue influence:

  1. The proponent must have occupied a confidential and/or fiduciary relationship with the testator;
  2. The proponent must have been a substantial beneficiary under the instrument; and
  3. The proponent must have actively procured the instrument. In re Carpenter’s Estate, 253 So. 2d 697, 701 (Fla. 1971)

A will may be successfully invalidated if the testator was unduly influenced into executing a will, or portions of the will. Undue influence occurs when a bad actor exerts so much control through pressure and persuasion over the testator such that he or she loses the ability to act voluntarily.

In Florida, there is a presumption of undue influence when a person who substantially benefits from the will possessed a confidential relationship with the decedent and was active in procuring the will.

The Florida Supreme Court has established a number of non-exhaustive factors that evidence active procurement. Blinn v. Carlman, 159 So.3d 390, 391 (Fla. 4th DCA 2015); In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).  The following factors have been identified as evidence of active procurement:

  1. The presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
  2. The beneficiary being present when the will or its contents were discussed by the decedent and the drafting attorney;
  3. Knowledge of the contents of the will by the beneficiary prior to execution of the will;
  4. Recommendation by the beneficiary of an attorney to draw the will;
  5. The beneficiary bringing the client to the attorney’s office to prepare the will;
  6. Mental inequality between the decedent and the beneficiary;
  7. Giving instructions on the preparation of the will be the beneficiary to the attorney drawing the will;
  8. Securing witnesses to the will by the beneficiary;
  9. The presence of the beneficiary at the execution of the estate plan;
  10. Safekeeping the will by the beneficiary subsequent to its execution;
  11. Isolating the testator and disparaging family members;
  12. Lack of reasonableness of the will or trust provisions.

In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971). All factors do not have to be proven to establish active procurement. In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971); RBC Ministries v. Tompkins, 974 So.2d 569 (Fla. 2d DCA 2008); Newman v. Brecher, 887 So.2d 384 (Fla. 4th DCA 2004); Sun Bank/Miami, N.A. v. Hogarth, 536 So.2d 263 (Fla. 3d DCA 1988). Courts have held that the presence of at least four factors will be enough to infer active procurement. In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971). The Carpenter court elaborated on the factors, saying that they were neither mandatory nor exclusive. “We do not determine that contestants should be required to prove all the listed criteria to show active procurement  . . . [as] it would be the rare case in which all the criteria will be present  . . . [w]e have troubled to set them out primarily in the hope they will aid trial judges in looking for those warning signals point to active procurement of a will by a beneficiary.” In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).

A beneficiary isolating a decedent and disparaging relatives can be “essential steps in asserting undue influence.” In re Ates’ Estate, 60 So. 2d 275 (Fla. 1952).  Additionally, inequality of mental acuity between a decedent and a beneficiary is an element that may be taken into consideration in determining active procurement. Hack v. Estate of Helling, 811 So. 2d 822, 826 (Fla. 5th DCA 2002) (“In addition, although not part of the Carpenter criteria, the inequality of mental capacity and strength between the testatrix and the party with the confidential relationship is a factor in determining active procurement.”); Estate of Brock, 692 So.2d 907 (Fla. 1st DCA 1996), rev. denied, 694 So.2d 737 (Fla.1997); Peacock v. Du Bois, 105 So. 2d at 322-23 (Fla. 1925); Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1988). Undue influence analyses must be factually specific to the decedent and the influencer, and not based on a reasonable or ordinary person standard. In re Estate of Reid, 138 So. 2d 342 (Fla. 3d DCA 1962).

What are the requirements for a Trust Contest for Fraud in Florida?

In Florida, fraud is a statutory method of invalidating n estate plan. Where undue influence relies on a person inducing a settlor into signing a trust, fraud occurs through deceit or tricking the settlor into signing a trust. For example, if a sibling gives a settlor with poor vision an amended trust and lies about the terms, the trust could be set aside for fraud. The sibling did not unduly influence the settlor, but deceived them into signing something different than what they believed.

This is different from undue influence, which relies on undue pressure or persuading the settlor to make a decision to change or alter the trust.

What is a Trust Contest for Duress in Florida?

Duress is perhaps the rarest forms of contesting n estate plan in Florida. Although it is technically possible and available under the statute, it is rarely used as a method for undoing a trust. Duress results from a change in the trust from a threat or blackmail. For example, if a sibling threatens to withhold groceries or medication from the settlor until they sign the trust amendment. 

Practice Areas


Florida Trust Litigation

Our lawyers litigate disputes on behalf of beneficiaries, trustees, and other interested parties. He handles trust contests, trustee removal, and breach of trust actions. 

Florida Probate Litigation

Even the best estate planning can potentially spawn disagreements between beneficiaries, heirs, or other interested parties. We can assist in challenging an estate plan, defending a will contest, or lawsuits relating to personal representatives.

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We handle causes of action for breach of fiduciary duty relating to powers of attorney, caretakers, family members, trustees, and personal representatives.

Florida Securities Litigation

We have extensive experience in Florida representing customers against brokers, broker-dealers, investment advisors, and financial advisors.

Complex Commercial Litigation

We handle a broad range of business litigation matters including contract disputes, shareholder actions, and challenges to director or manager efforts.


We understand alternative methods of resolving disputes. Our firm has civil mediators and can help with mediating a variety of civil litigation matters.

Our Team

Bob Persante

Bob Persante


Bob is a trial lawyer in our Clearwater office handling securities litigation, complex business litigation, and estate litigation matters throughout Florida.

Zackary T. Zuroweste

Zackary T. Zuroweste


Zack is a lawyer in our Clearwater office handling fiduciary litigation, trust & estate litigation, business litigation, and securities arbitrations.

Darren M. Stotts

Darren M. Stotts


Darren is a lawyer in our Clearwater office. His practice areas include probate and trust litigation, fiduciary litigation, securities litigation, and commercial litigation matters.

Anastasia N. Landon

Anastasia N. Landon


Anastasia is a lawyer in our Clearwater office. Her practice areas include probate and trust litigation, fiduciary litigation, securities litigation, and commercial litigation matters.

Cindy Corder

Cindy Corder

Litigation Paralegal/Mediation Coordinator

Susie Ross

Susie Ross

Litigation Paralegal

Sarah Greene

Sarah Greene

Litigation Paralegal



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