“The truly wise man, we are told, can perceive things before they come to pass; how much more than those that are already manifest.” Sun Tzu, The Art of War
The following discussion is not intended to cover every conceivable claim that could arguably be asserted by disgruntled beneficiaries or disinherited family members. The focus here is on highlighting the most likely avenues of attack. The operative assumption is that thoughtful estate planners who are sensitive to these dangers and proactively engaged with their clients in guarding against them will in all likelihood greatly diminish the likelihood of estate litigation in all of its possible permutations.
1. Execution Formalities
Although execution formalities should be second nature to estate planners, it is helpful to periodically review them nonetheless. F.S. §732.502 requires that a will be in writing, that it be signed at the end by the testator or by another at the testator’s direction, and that the testator sign, or acknowledge signing or directing another to sign, in the presence of two witnesses. It is not required that the testator sign in the presence of the witnesses if he or she acknowledges his or her signature to them. It is mandatory, however, that the witnesses sign in the presence of each other and of the testator. F.S. §732.502(1)(c). F.S. §737.111 provides that the testamentary aspects of a trust executed on or after October 1, 1995, are invalid unless the instrument is executed by the settlor with the formalities for the execution of a will.
2. Lack of Testamentary Capacity
F.S. §732.501 provides that the testator must be of sound mind and be at least 18 years of age or an emancipated minor. Testamentary competency means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty, and a general understanding of the practical effect of a will. Although there is no provision in the trust statute similar to F.S. §732.501, general law as to the inability of an incompetent person or a minor to contract should be applicable to execution of a trust.
3. Fraud, Duress, Mistake & Undue Influence
F.S. §732.5165 specifically provides that a will, or any part of it, is void if procured by fraud, duress, undue influence, or mistake. Under F.S. §737.206 fraud, duress, mistake, or undue influence may be asserted as grounds for trust contests as well.
A fraud claim would be based on the general elements applicable to all fraud claims: false representations of material facts, knowledge by the perpetrator that the representations are false, intent that the representation be acted upon, and a resulting injury. Fraud defeats the testator’s wishes through deceit. Examples of duress would include the execution of a will or trust under threat of blackmail or force. Here the idea is that the testamentary instrument is not the voluntary act of the testator and is thus invalid. Undue influence is a substitution of the mind of another for the mind of the testator that induces the testator to act contrary to his or her wishes. In Zoldan v. Zohlman, 915 So.2d 235 (Fla. 3d DCA 2005), the Third DCA recently articulated the rule as follows when it reversed a trial court ruling finding undue influence based on the decedent’s alleged desire to please his spouse:
The Florida Probate Code provides that a will is void, either wholly or in part, if its execution is procured by fraud, duress, mistake, or undue influence. § 732.5165, Fla. Stat. (2003). The undue influence required for invalidation of a testamentary document is conduct amounting to duress, force, or coercion to such a degree that the free agency and willpower of the testator is destroyed. Mere affection and attachment or a desire to gratify the wishes of one who is esteemed or trusted may not alone be sufficient to amount to undue influence. E.g., In re Peters’ Estate, 155 Fla. 453, 20 So.2d 487, 492 (Fla.1945); Derovanesian v. Derovanesian, 857 So.2d 240 (Fla. 3d DCA 2003), rev. denied,868 So.2d 522 (Fla.2004); Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997); Coppock v. Carlson, 547 So.2d 946 (Fla. 3d DCA 1989); and cases cited therein.
Estate claims based on “mistake” are predicated on the decedent’s execution of one instrument under the belief that he or she was executing another. “Mistake” in this context does not mean a mistake in the decedent’s understanding of a factual situation, a mistake in wording, or a scrivener’s error in drafting the will.
4. Spousal Elective Share Claims
The right to an “elective share” is granted to the surviving spouse of any decedent domiciled in Florida with no restriction as to the residence of that surviving spouse. F.S. §732.201. The elective share is equal to 30% of the “elective estate.” F.S. §732.2065. The “elective estate” includes both probate and non-probate assets. F.S. §732.2035. The elective share is in addition to a surviving spouse’s rights to homestead property, exempt property, and allowances as provided in Part IV of F.S. Chapter 732. F.S. §732.2105.
5. Tortious Interference in Estate Planning
The tort of interference with an expectancy of inheritance authorizes the injured beneficiary to bring what amounts to a derivative action to recover damages. The tort is recognized to advance a public policy for the protection of the testator’s interest in freely disposing of his or her property by gift or devise, rather than the disappointed beneficiary’s expectancy. The most significant characteristic of this action is that it is not a probate-centered lawsuit. In fact the claim may be brought only under circumstances that do not usurp the jurisdiction of the probate court, constitute an impermissible collateral attack on an order or judgment entered in probate, or improperly delegate, to disappointed beneficiaries, the responsibility for the protection of a competent testator’s right to dispose of property freely and without improper interference.
It should also be noted that in light of the 2006 U.S. Supreme Court opinion involving tortious interference claims asserted by former Playboy model Ana Nicole Smith, these claims may become more common – in federal court. Martha Neil in her article More Probate Suits Seen in Smith Ruling, ABA J. e-Report, May 5, 2006, reported that the Ana Nicole Smith case is expected “to open federal courtroom doors to a deluge of new estate-related litigation.” Here is an excerpt from her article:
Meanwhile, even those on the other side expect the Supreme Court decision in Smith’s case to open federal courtroom doors to a deluge of new estate-related litigation.
“I think it’s going to be read primarily by litigators and it’s going to create another new litigation opportunity,” says James R. Wade, a Denver lawyer and former probate judge who filed an amicus brief on behalf of the National College of Probate Judges. “I think that the litigators are going to see opportunities which they hadn’t even thought of before of bringing probate cases in federal court.”