What Is Considered Fraud In a Will?

The last will and testament is often the most vital estate planning document. When you pass, your will guides the disposition of your property, assets, and wealth. You can appoint a trusted executor to oversee your estate’s closing. Through this person, hopefully, your last wishes are accomplished.

However, a will induced or executed by fraud is invalid in Florida. Fraud constitutes one of the primary reasons that you can contest a will. If anyone uses fraud to interfere with the willmaker’s true intentions, the entire will may be called into question.

Fraud can occur when someone deceives or lies to the testator as they create or change their last will and testament. For example, if a person convinces an elderly person they are their long-lost child when, in fact, they have no relation to the testator. If the fraudster was added to the will, the new will would be considered fraudulent.

What Is Florida Statute 732.5165?

Florida Statute 732.5165 controls how the state’s probate courts should treat any instance of fraud or other problems in creating or revoking a will. 

The text of the statute reads:

“A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.”

As this statute makes clear, Florida law contemplates that fraud can result in both the creation and the revocation of a will. In either case, the law attempts to remedy the situation by returning things to how they were before the fraud occurred.

However, probate courts make a solid effort to uphold a deceased testator’s intentions when a will is challenged. For this reason, Florida Statute 732.5165 allows the rest of a will to stand even if one or more provisions are found to be fraudulent. In other words, if only part of a will is invalid, the rest of the will can still be enforced.

Can Anyone Contest a Will in Florida?

To contest a will in Florida, you must be an interested party in the will’s execution. If you aren’t considered an interested party, you lack the standing necessary to dispute the will or any of its provisions. An interested person has a broad definition, but it prevents true strangers and outsiders from challenging a testator’s wishes. 

Interested persons can include:

  • Relatives of the deceased
  • Beneficiaries listed in the will.
  • Beneficiaries listed in prior wills but excluded from the one going through probate.
  • Creditors of the estate.
  • Trustees of a trust created by the deceased.

So, if you are the testator’s child but do not appear as an heir or beneficiary in their will, you have the standing to contest their will. However, if you are a distant cousin who is not named in the will, you may not be an interested party that can launch a dispute.

What Happens if a Will Is Contested in Florida?

In Florida, a will can be contested any time before the probate court discharges the estate’s personal representative from their duties. However, if you are an interested person and receive a formal Notice of Administration, you typically have only 90 days to initiate a will contest. This timeline is shortened to just 20 days if the formal notice is provided to you before the will is filed with the probate court.

The procedures for contesting a will occur within the probate court proceedings and not as a separate legal case. The person who contests a will needs to provide enough documentation and evidence of some deficiency to stall the administration and execution of the will.

There are three possible outcomes to a will contest:

  • The court finds the will valid and enforceable and allows its execution to proceed. The challenge fails, and the executor can carry out the provisions as written.
  • The court finds the entire will to be invalid. If a prior, valid will for the deceased can be found, probate will instead enforce that document’s provisions and distributions. Without an earlier, enforceable will, Florida’s intestate succession laws would govern the distribution of the entire estate. Effectively, the testator will have passed away without a will.
  • The court finds certain specific provisions of the will invalid. This could be a partial or complete victory for the person contesting the will. All remaining provisions would be carried out as contained in the will, while the assets or property subject to the invalid portions would be distributed as called for either in an earlier will or by intestate law.

Contesting a will in Florida can be challenging, and fraud is notoriously difficult to prove. You should always consult with a will contest lawyer to determine the best way to attack a fraudulent will. Having an experienced professional on your side can make a substantial difference in the outcome of your claim. 

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About RMO Lawyers, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit https://rmolawyers.com/.

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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