A Tale of Two Wills: Fort Lauderdale Probate Lawyer Explains

When a person dies and there is more than one will, it can come as a surprise to family. No matter which side you’re on, you will need to discuss your options with a Florida probate lawyer. A careful investigation will be necessary to determine whether a will contest is appropriate. It may be that one of the wills produced has a clear claim, or it may be necessary to initiate probate litigation to assert the validity of one will over another.¬†Fort Lauderdale probate lawyer

Many people understand the importance of updating their will and other estate planning documents when important life events occur, such as when there is a marriage, birth, death or major falling out or formation of new romantic ties. Wills can be updated and recipients of certain assets can be modified. That’s why it’s not unheard of to have two or more versions of the same will. The problem with having numerous wills is that it can ultimately result in the assets of the testator (creator of the will) not being distributed according to his or her desires. A Fort Lauderdale probate lawyer can explain in more detail, but generally, the courts will seize on the most recent version of the will. Ideally, all copies of the previous version of the will would be destroyed and the updated version should distributed to all concerned so there is no confusion. Of course, real life is rarely so tidy, and Florida will contests are fairly common.

These were the facts of the case in a matter before¬†Florida’s 4th District Court of Appeal, though the exact issue before the court was whether a plaintiff’s claim should be dismissed for a technical defect. (This is another reason you should have a Fort Lauderdale probate lawyer on board – to ensure you don’t miss any key filing deadlines and that all claims are properly pleaded.)

Plaintiff’s Florida Probate Lawyer Secures Right to Have Case Heard

In the case of Winslow v. Deck, the live-in partner of a man who died in 2015 sought to have a more recent version of his will (drafted in 2014) recognized, while his daughter wanted the probate court to establish that her version, drafted in 1991, was the one that held the greater legal weight.

According to court records, the testator left his entire estate to his two adult children in the earlier version of the will. Several years after that, however, he befriended a woman and they soon began living together. After this, he drafted a second will that contained language indicating all prior wills were revoked and leaving his entire estate to her.

Shortly after decedent died, his daughter was successful in petitioning the probate court to admit the first will and also to name her as personal representative of his estate. A few weeks later, however, decedent’s surviving partner filed the second will. A couple days after that, she filed several more documents, including an emergency petition to revoke letters of administration, a counterpetition for administration with the second will attached, an objection to the daughter’s petition and her appointment as personal representative of decedent’s estate and a declaration that this was an adversary probate proceeding. (Within adversary probate proceedings, Florida Rules of Civil Procedure apply, and the case proceeds essentially as if this was a civil lawsuit, meaning parties can conduct discovery, make requests for production of derogatories, interrogatories and depositions. Rule 5.025(a) spells out the details of when the court can find a probate proceeding adversarial.)

The probate court denied the emergency petition and dismissed it without prejudice, recognizing instead the administration of the first will.

More than a year passed, and the daughter moved to dismiss the counterpetition with prejudice, arguing the partner lacked standing to contest the first will. She pointed out that the partner had three months from the date of notice that the first will was being recognized to take action, and while she did file an emergency petition, she failed to file any paperwork asking the court to revoke the first will. The partner asked the court to either deny her motion to dismiss or else grant her leave to amend.

The court dismissed the counterpetition with prejudice (meaning she couldn’t file it again) and issued a final order, finding she had failed to meet the statutory requirements as set forth in F.S. 733.212(3) to adequately request relief. On appeal, the 4th DCA reversed, concluding courts as a general rule shouldn’t prevent a petitioner from challenging a will just because of a technical flaw without offering a reasonable opportunity to fix it. The court held that while neither of counterpetitioner’s filings were “models of clarity,” they were nevertheless sufficient to assert that that the first will wasn’t the last or valid will and that the estate should have an independent executor.

If you run into a situation where there is a dispute among family or loved ones regarding two or more wills left by a decedent, a probate lawyer should be contacted for help with these proceedings. Initial consultations are free.

Call Fort Lauderdale Probate Lawyer Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Winslow v. Deck, Aug. 2, 2017, Fla. 4th DCA

More Blog Entries:

Florida Probate Lawyer: How Much Time Do I Have to File a Will Contest?, Oct. 30, 2018, Fort Lauderdale Probate Lawyer Blog

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