Trust and Estate Litigation

Arthur S. Hardy  |  Martin Garcia

After a person’s death, assets of the estate are distributed to the heirs in accordance with the desires of the decedent as set forth in a will. Probate is the process in which the personal representative proves the validity of the will to a court, and presents a lists of debts and assets to be distributed to the beneficiaries of the will. The will may also create a trust, in which a trustee is responsible for managing the trust assets for the benefit of the trust’s beneficiaries.

The personal representative may be appointed in the will or may be appointed by the probate court. A decedent who does not have a valid will is considered “intestate,” in which case the person’s estate will be distributed by the probate court in accordance with state law.

Why Matthews Eastmoore?

Probate can be a very time consuming and expensive process, especially when problems arise. Whether dealing with trust or estate litigation, or problems with wills, Matthews Eastmoore attorneys help personal representatives fulfill their responsibilities and help individuals get the inheritance they are owed.

Common Issues

Issues may arise in the distribution of assets in accordance with a will. Some of the most common include:

  • Contesting the validity of a will
  • Lack of mental capacity of the testator
  • Undue influence by a third party
  • Breach of fiduciary duty
  • Interference with expectancy

Will Contests

Determining Liability

A will outlines how an individual’s property will be distributed after death. The person creating the will is known as the testator. The testator designates a personal representative to be responsible for ensuring that the assets of the estate are distributed correctly to the beneficiaries of the will.

A testator may directly bequeath ownership of property to beneficiaries, or ask that the property be held in trust, by a trustee, for the beneficiary. In a trust, the beneficiary is not in charge of the assets bequeathed but may receive the profits from them.

A contested will is a will that an individual believes to be invalid. In Florida, there are four ways to contest the validity of a will.

  1. The will was not signed and witnessed in accordance with state laws.
  2. The testator was not mentally capable of understanding the nature of the estate and the implications of the will when the will was signed.
  3. An outside party held some kind of undue influence over the testator when the will was signed, such as isolating the testator from family members.
  4. The will was only signed by the testator due to fraud.

Valid Execution Of A Will In Florida

To be valid, a will must be created in compliance with certain formalities. These formalities help ensure that the will is genuine, and protect the testator and the beneficiaries.

In order to be valid, the will must be:

  1. In writing
  2. Signed by the testator at the end of the document
  3. Signed in the presence of two witnesses in the presence of each other and the testator

If the will is invalid, the estate will either be passed down through a prior valid will, or will be divided among the family and heirs in accordance with the rules of the intestate statute of the state.

Lack of Mental Capacity

In order to create a valid will, a person must be of sound mind. If the testator lacked the mental capacity to understand what he or she was doing, the will is invalid. The testator is allowed to create a will while sick or dying, but the will is invalid for lack of capacity if he or she did not have the ability to understand what he or she was doing by creating a will. The requirements are that he or she must:

  • Understand what the will is
  • Understand his or her property and assets
  • Understand who would receive the property
  • Understand how the will distributes the property

If these four factors are not met, the will may be invalid for lack of mental capacity.

Undue Influence

The testator must not have signed the will because of the undue influence of a third party. An undue influence may be presumed if the third party

  • Had a confidential relationship with the testator
  • Was a substantial beneficiary under the will
  • Was active in the creation of the will

If these three factors are true, the will may be invalidated for undue influence.


The will must not have been signed due to fraud. Fraud occurs when a will’s beneficiary causes a change in the will through misrepresentations. For example, if one heir under the will lies to the testator about another heir, and causes the testator to change the will, this is fraud and the will may be invalid.

Who May Sue

Usually, a will contest is brought by people who have been cut out of the will, or had their inheritance changed, due to problems in the will. If the will is deemed invalid, the estate may either pass to the beneficiaries through the state’s intestate statute – and thus send the assets to the spouse, children, or close relatives – or through a previous and valid will.

When You May Sue

The deadline for contesting a will is as short as 90 days in some instances. It is best to speak to a lawyer as soon as possible to preserve your rights.

If you have been cut out of a will or if someone is trying to take away your inheritance, call us today at 941-366-8888 or schedule a free consultation. We will work to get you what you deserve.

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