When you lose a loved one, you want to make sure that his or her wishes are carried out. Usually, this means probating the decedent’s (the person who passed away) will and distributing the remaining assets according to the will. Under Florida probate law, however, if the will, or a portion of it is procured by a person through fraud or duress, or the decedent simply made a mistake, you need to make sure that the decedent’s true wishes are properly carried out. Sometimes this means filing a Florida will contest under the theory that the will was procured by fraud, duress, or was a mistake.

Under section 732.5165, Florida Statutes, “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.”

Section 732.5165, Florida Statutes states that if a will is procured by fraud, duress, mistake, or undue influence, the will is void. If a part of a will has been procured by fraud, duress, mistake, or undue influence, but the other parts of the will are validly executed, then that part of the will is void. The same test is used for the revocation of a will. If a revocation was procured by fraud, duress, mistake, or undue influence, then the revocation is void. For a basic review of undue influence, please see our previous blog post.

In instances of fraud, there are two situations to look out for. First is fraud in the inducement. This is fraud that is used to induce the testator (person who executed the will) to execute the will. An example of fraud in the inducement is when a person misleads the testator into signing a particular will or including a particular provision in the will. For example, the nurse says “Bobby never comes to visit, so leave your stuff to me.” Bobby shows up every day trying to visit, but the nurse turns Bobby away every day falsely stating “Sorry, she’s too sick to see you today.” In this example the nurse if falsely telling the testator that Bobby never comes to visit, even though he does. If the testator were to leave her assets in her will to the nurse instead of Bobby, this could be considered fraud in the inducement. There is an issue of undue influence by the nurse in this example as well.

Second is fraud in the execution. This is when a person signs a testamentary document believing it to be some other document. An example of fraud in the execution is when a person tells the testator that he or she is executing a contract, when in fact it is a will that is being signed.

The will may be considered void if there was a mistake in the execution of the will. An example if this is if the testator signs a will that is another person’s will, or if there is a provision in the will that was mistakenly included. In the case of a mistake, the will is invalidated because the resulting will does not indicate the testator’s intent to distribute his or her assets under the scheme included in the mistaken will.

However, if a there was a mistake in the execution of a will, an interested person can request that the court reform the will in order to comply with the testator’s intent. This reformation of a will is governed by section 732.615, Florida Statutes. Under section 732.615, Florida Statutes, “Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.”

As a result of section 732.615, Florida Statutes, a court may reform the terms of a will if the term was included in the will by mistake. It is important to remember that the will can only be reformed if there is clear and convincing evidence of a mistake with the terms of the will. A will cannot be reformed if one of the beneficiaries just disagrees with the terms. There needs to be evidence that the testator made a mistake. In this event, the interested person challenging the will needs to present clear and convincing evidence of the mistake and of the new terms that should be substituted for the mistaken terms.

In the event that you think that a will for a loved one was executed under fraud, duress, or includes a mistake, you need to talk to a Florida probate attorney. If the will is currently in probate, you need to act quickly. If you are an interested person and have received formal notice of the Florida probate case, there is a time limit for you to act to challenge the will. If you do not act quickly, you could forfeit your rights. Contact our firm today to schedule a free consultation to see if we can help you.



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