In Estate Planning, many instruments require contracts between the parties. To properly execute a contract, several requirements are required. If one of these requirements is not met, the instrument, such as a will or trust, may be challenged after the decedent dies.
A person who is entering a contract must have the legal and mental capacity to enter the agreement. The individual must be of age, meaning above the age of 18 years old as well as have a sound mind. To establish an individual has a sound mind, it is important they know the nature of the assets, who the assets are going to, and what the instrument purports to accomplish. If the person signing has an irrational unwarranted belief that is not supported by reality, which thought effected the last will & testament, then under this circumstance they will not have the capacity to enter the agreement.
Another challenge to an executed agreement is if the testator is subject to actual last will and testament with eyeglasses on the wooden desk undue influence. This is a subjective analysis and is on a case-by-case basis. If the influencer of the testator is a substantial beneficiary under the will, which they have occupied a confidential relationship and took part in creating the document, then the testator would have been subject to undue influence.
Fraud is common in many areas of the law, but in particular, it can be present in the execution of an estate planning instrument. Fraud involves a false representation, which the person making the representation does so consciously. The testator believes in the representation and intends to rely on it and changes his instrument accordingly. If Fraud has occurred, then the heirs and beneficiaries may have a claim for a remedy such as contesting the will and having it invalidated.
Duress involves the idea that while the testator was executing the instrument, some “arm twisting threat” occurred. This arm twisting threat occurred by a third-party influencer and is usually done in situations such as an impending divorce, death, or birth. If someone has executed an instrument under duress, the beneficiaries may be able to seek a remedy.
The last challenge involves a mistake. It’s important to look at the testator’s intent to determine if a mistake has been made. In Florida, courts will almost fix any mistake. Courts may strike entire portions of the instrument, strike the instrument altogether, or reform the instrument to fix the mistake.
It’s important to contact one of our Estate Planning Attorneys to know all the details. Contact our Attorneys in Sebastian Florida to find out more!