Altering a will to disinherit a family member is within anyone’s right, though it can lead to conflict. Probate litigation attorneys in South Florida at The Ansara Law Firm know there are ways to minimize the potential for warring family interests or a contested will after your death.
Because contesting a will in Florida can be successful under a number of circumstances, ensuring your wishes will be followed as you have outlined requires working closely with a probate lawyer in drafting these changes.
Recently, the passing of a popular South Florida sports broadcaster sparked a fierce – and sadly public – feud between his adult children and his wife/ mother of his two youngest children, both minors. According to The News-Press in Fort Myers, the broadcaster wrote his oldest son and daughters from his first marriage out of his will in June 2015 – the day after receiving a stem cell transplant from his oldest son. He died about 1.5 years later, though his oldest didn’t learn of the change in his will until this past December, when his stepmother asked them to sign formal documents promising not to contest the will.
His inheritance was instead left to his wife of 13 years. The older siblings say they do not plan to contest the will, but garnered headlines by publicly expressing their emotional sadness over the situation. Under Georgia law (where the will was written), heirs must be given the opportunity to contest a will if they are not beneficiaries. However, the siblings have been quoted as saying they resent having to hire attorneys to be involved in a legal drama in which they want no part.
In general, spouses and minor children cannot be disavowed or disinherited from one’s will. However, adult children and other relatives may have lesser grounds on which to contest.
As cruel as it might sound to disinherit a child, even an adult one, our probate litigation attorneys in Fort Lauderdale know there are circumstances under which it makes sense. In some cases, there is no relationship. In other instances, parents may feel certain children are more well-off than others and thus don’t have as much need for the money or assets. Often, though, the way it’s worded matters. Using emotional verbiage in the legal document could increase the chances an heir will contest the will. Omissions might not be a better bet, considering some judges may consider the omission an error and the court will generally shy away from keeping someone from getting assets it might seem the deceased would have wanted them to have.
In some cases, if your estate is large enough, it can be smart to leave token amounts to estranged relatives, just to abate the infighting and lessen the chances of them contesting the will.
Some of the grounds under which Florida probate laws allow a contested will include:
- Lack of capacity. The person contesting the will can assert the testator lacked mental capacity to make the will and/ or understand the nature of how the assets were being distributed. This is often established with a diagnosis of psychosis or dementia or through witness testimony of irrational conduct.
- Undue influence. This could be asserted if there is evidence someone (friend, relative, adviser, health care worker, etc.) improperly exerted pressure on the testator, compelling or coercing them to execute the will in a manner they otherwise might not have.
- Fraud. This occurs when changes to the will were based on misrepresentation. For instance, if an adult child lies to a parent about the actions of a sibling, causing the parent to disinherit that sibling, the will may be successfully contested.
Again, having an experienced probate lawyer help you draft your will can help avoid these potential problems from arising after your death.
Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Craig Sager Jr., 29, shares emotions over Craig Sager Sr. excluding him from will, Jan. 12, 2018, By David Dorsey, The News-Press
More Blog Entries:
“The Evil Stepmother”: A Stereotypical – But Common – Dynamic in Florida Probate Litigation, Trust and Estate Disputes, Feb. 25, 2018, Fort Lauderdale Probate Litigation Lawyer Blog