Surprises following the death of a loved one are not typically welcome – particularly if the surprise relates to the decedent’s Last Will and Testament. For example, if the decedent attempted to make a deathbed Will just prior to his/her death, is that Will legal? A Port St. Lucie probate attorney at Kulas Law Group discusses whether a deathbed Will is valid in Florida.
Is a Deathbed Will Exactly What It Sounds Like?
Most of the time, the creation of a Last Will and Testament is rather formal, taking place with the assistance of an attorney and executed in the presence of that attorney. Along with ensuring that the Will accurately reflected the Testator’s intentions, these formalities also help to prevent challenges to the Will after the Testator’s death. Sometimes, however, surviving love ones are left to deal with a “deathbed” Will. As the name implies, a deathbed Will is a Will that is written down and executed (or spoken in the case of an oral Will) when the Testator knows that death is imminent.
A Testator might attempt to create a deathbed Will because he/she never got around to executing a formal Will. A deathbed Will may also purport to revoke a previously executed Will and may dramatically change the provisions of that previous Will. Beneficiaries from the previous Will might be left out completely and/or a new beneficiary might be added and stand to inherit a significant portion of the estate under the terms of the new deathbed Will. Given the circumstances under which a deathbed Will is created, it should not be difficult to imagine why such a Will is frequently contested when it comes time to probate the decedent’s estate.
Is a Deathbed Will Valid?
The potential validity of a deathbed Will is determine by the laws of the state in which the Will was executed. In Florida, for a Will to be legal the Testator must be at least 18 years old and of sound mind, the Will must be in writing, signed by the Testator or by someone else at the Testator’s direction, and witnessed by two disinterested witnesses. Unlike many other states, Florida does not recognize nuncupative, or oral, Wills nor does is recognize handwritten Wills under any circumstances.
Because Florida does not recognize handwritten or oral Wills, there is a very good chance that a deathbed Will may be found to be invalid on its face. Most deathbed Wills are either spoken to loved ones or written down by the Testator without any of the required formalities. If, however, the deathbed Will does meet the requirements for a valid Will (in writing, signed by the Testator, and witnessed) then the Will could be valid. At that point, anyone wishing to challenge the Will must consider whether or not there are sufficient legal grounds on which to contest the Will. Given the circumstances under which the Will was executed, a contestant may feel that those grounds do exist. In Florida, a Will can be contested using any of the following grounds:
- Lack of proper formalities – this refers to an improperly executed Will. For example, if there were no witnesses to the signing of the Will.
- Lack of testamentary capacity – this refers to a claim that the Testator lacked the necessary mental competency to make a will, meaning that he/she did not understand the nature of his or her assets and the people to whom the assets were going to be distributed.
- Undue influence – refers to a situation where a Testator is compelled or coerced to execute a Will by applying improper pressure or persuasion. Usually, this is done by someone in a position of trust close to the Testator, such as a family member, caregiver, or even healthcare worker.
- Insane delusion – refers to a situation when a Testator, against all evidence to the contrary, believes something that is not true, and creates or changes an estate planning document, in this case a Will, based on the insane delusion.
- Fraud – refers to a situation wherein someone causes the Testator to make or change a Will based on misrepresentations.
Because the validity of any Will depends on the facts and circumstances surrounding the execution of the Will, only an experienced probate attorney can review those facts and circumstances and help you decide if the Will in question is likely to be upheld or not.
Contact a Port St. Lucie Probate Attorney
To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the validity of a deathbed Will, please contact an experienced Port St. Lucie probate attorney at Kulas Law Group by calling (772) 398-0720 to schedule a consultation.