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Wills, Trusts & Probate

Introduction Probate

Probate is such a highly specialized branch of probate practice that most probate lawyers, even probate specialist, do not get involved. The typical probate lawyer has knowledge concerning how to administer an estate through the probate process, but is usually not a litigator, per se. The law offices of, Jessica Mishali has extensive experience in probate administration. Our office will aggressively represent you and always seeks to protect your rights with professional excellence.

Types of Probate Will or Trust Contest

There are various grounds to contest the will or revocable trust, including undue influence, lack of testamentary capacity, defects and execution, mistake and insane delusion.

a. Undue Influence

Undue influence is statistically the most frequent legal basis for revocation of probate. When one attempts to contest a will, it is done within the probate proceeding. When the will contestant seeks to revoke probate, it has been defined as a species of fraud or a kind of duress. The phrase "undue influence" is in law. Another term for fraud. Undue influence is sufficient as a ground to invalidate a decedent's will. Because undue influence is often done in secret with no witnesses present. The law has created the presumption of undue influence which implements public policy against the abuse of fiduciary or confidential relationships. Case law has set out the manner in which a presumption of undue influence can arise. It may be presumed if the following three principal factors are present. These three factors are whether the alleged undue influencer:

  • Is a substantial beneficiary
  • had a confidential relationship with the decedent, and
  • actively procured will or other document being challenged.

The presumption of undue influence in the execution of the will cannot arise when the alleged influencer is the spouse of the decedent. Spouse shall undue influence can (and must) be directly proved rather than utilizing the presumption.

Diminished Capacity

When the court must decide if undue influence has occurred, the issue of the mental and physical condition of the decedent testator often arises. The testator may have the mental capacity to make the valid will, while at the same time being of such weak mental and physical health, that it would take little to influence such a person.

b. Testamentary Capacity

The second most used ground for setting aside a will is testamentary capacity. The will statute requires that a person making the will be "of sound mind." However, there is no definition in the statutes for "sound mind" or "testamentary capacity." Florida courts have put forth some guidelines to determine when a testator is of "sound mind." What is required of the testator is the ability to understand. It is not necessary that the testator actually understand. The burden is on the contested to prove absence of testamentary capacity.

c. Improper Execution

Florida statutory law is the primary authority for the requirements for the execution of the will. Florida requires two witnesses for valid will. The law requires at least two attesting witnesses signed in the presence of each other and in the presence of the testator. However, the statute does not require the testator to signed in the presence of the two witnesses. As long as the testator acknowledges to them that he or she executed the document. The most frequent successful attack on a will's execution is where one of the witnesses or the testator was not present at the time the other when this subscribed the document.

Other Grounds Revocation

A will may be revoked by:

  • Execution of a subsequent inconsistent will
  • execution of a subsequent document specifically revoking the prior will
  • defacing or destruction of the will by the testator or some other person

Florida law provides that a will is void if it is based on a mistake. This is not a mistake of fact, but happens when the testator believed that he or she was executing the document.

Insane Delusion

Florida courts have held that insane delusion is a type of paranoia directed toward a single object or class of objects. The courts referred to this as a species of mental disease. A court can invalidate a will if it is made by a testator who is suffering from insane delusion.

Contact a West Palm Beach Probate Attorney

The law offices of West Palm Beach probate attorney, Jessica Mishali, strives to protect your rights with professional excellence. We understand that your trust is hard-earned. We will aggressively handle your probate case and will carefully counsel and advise you, because we know that this is an emotional difficult and trying time. Please contact us at (561) 833-2772 for a free consultation or contact us online.

Client Reviews
Mishali is a great lawyer I counted on her with my liberty at stake so she fought for me & pulled through. She will contact you before court dates to make sure you appear, Always be on time, And has a terrific personality. I would highly recommend this lawyer, If I was able to rate her 10 stars I wouldn't hesitate! - Keith
Jessica is so great at what she does. She is very dedicated and efficient. I don't know what I would've done with her. I highly recommend her for any service needed. - Starr
I hired Jessica Mishali to represent me. She did a phenomenal job for me. She is very talented and creative and goes above and beyond for me and I'm very confident she will do for all her future clients. She delivers results!! - Miriam