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Estate/Trust Litigation

Estate/Trust Litigation

A properly drafted will or trust should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the creator.  Unfortunately, estate planning documents, whether wills or trusts, do not always clearly reflect the intentions of the testator/trustmaker.  Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to some aspect of the administration. 

When someone with standing objects to a will or a trust, the controversy might have to be litigated.  In a probate this is often referred to as a “will contest.” Often, in trust cases, the contest may involve failures on the part of the Trustee to carry out its duties timely and within the fiduciary responsibilities of that position.  These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures.

Probate Courts

Typically, if a will is involved, a probate court will determine whether or not it is valid and should be honored.  If will is found to be valid, the court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The court also oversees the distribution of assets if the testator, or deceased person, died intestate, without a valid will.

Who Can Contest a Will?

A protesting party may only contest a will if he or she falls within one of two categories.  First, those mentioned in the will, known as the will’s beneficiaries, may formally challenge it.  Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will, or is expressly disinherited, he or she may seek to contest.  If one is not named as a beneficiary in the will and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge.

In order to successfully contest a will, the protesting party must prove that the will is invalid.  There are several scenarios under which a will may not be admitted, including but not limited to:

  • Undue influence - If the testator signed his or her will under the threat of physical or emotional abuse or other persuasion so insidious that the testator is actually substituting the persuader's desires for that of the testator. This is referred to as a will or a disposition in the will procured under undue influence.
  • Mental incapacity - Similarly, if the testator is shown to have been in an incapacitated or otherwise impaired mental state at the time the will was executed, it may be considered void. 
  • Will does not follow procedure - A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
  • The will was revoked - If the will was revoked after it was signed, it will also be considered void.  A subsequent will, marriage, or legal action may also revoke a will.
  • Fraud - Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party. 

When there is no Will

In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect.  Typically, inheritance is granted to family members according to a specific order.  Once the decedent’s debts have been paid from the estate, the remaining assets are distributed among the testator’s spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren.  Family members who are half-blood relatives are generally considered as if they were full-blood.

Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one’s rights.  Whether you are an executor, trustee, beneficiary or someone improperly left out of a will, contact our estate litigation attorneys to discuss your options.


With an office in Sarasota, FL Advocates in Aging: Law Office of Ira Stewart Wiesner serves clients throughout Bradenton, Port Charlotte, Venice, Sarasota County, Manatee County, De Soto County, & Charlotte County.



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