Mistake in Execution

Probate is the legal process through which a decedent’s debts are paid and his assets are distributed when he dies. At times, a will may be involved, but sometimes it isn’t. Oftentimes, adversarial issues arise in probate. If a controversy culminates in the filing of a formal lawsuit, probate litigation may ensue. If a decedent’s will is offered for probate, there are many requirements put on the probate process by law. There are also rules that should be followed to properly execute a valid will. If you have questions about a possible mistake in execution related to a will, you can consult a seasoned Ocala probate litigation attorney.

There are various grounds by which a decedent’s Last Will and Testament can be contested. One of these ways is to raise a mistake in execution argument.

Under Florida Statutes section 732.502, certain requirements must be met for a will to be valid. When these requirements aren’t met, the will can be subject to legal challenge. For example, wills must be in writing. Wills also need to be executed such that the testator needs to sign the will at the end, or else have their name subscribed at the end of the will by another in the testator’s presence and at the testator’s direction.

There must be witnesses to the will’s execution. The witnesses need to witness the testator’s signing or acknowledge that he or she has previously signed the will, or that another subscribed the testator’s name to it in the presence of at least two attesting witnesses. Attesting witnesses need to sign the will in front of the testator and in front of each other. Other than a holographic or nuncupative will, any will executed by someone who doesn’t live in Florida is a legitimate will in the state if it’s valid under the laws of the state or country where the will was executed.

Additionally, a will that’s executed as a military testamentary instrument in line with 10 USC s. 1044d, Chapter 54 by someone eligible for military legal assistance is valid as a will in Florida.

Validity doesn’t require a testator to have used a particular form of words to make a will valid where it’s executed with formalities required by law. Further, codicils are supposed to be executed with the same formalities of a will. A skilled trust and estates lawyer can review the estate planning documents at issue in your case to determine whether their validity may be subject to challenge.

A will may be void if there was a mistake in execution. For example, if the testator signed another person’s will, the will may be voided because the will doesn’t show the testator’s intent to distribute assets according to the will’s terms. Where there’s a mistake in execution, it is also possible for an interested party to ask the court to reform the will to comply with the testator’s intent under section 732.615. The terms can be conformed to the testator’s intent where it’s shown by clear and convincing evidence that both accomplishment of the intent and the will’s terms were impacted by a mistake of law or fact, whether in inducement or expression. To determine original intent, the court can consider proof relevant to intent even if the proof contradicts an apparent plain meaning of the will.

To decide whether the elements of a mistake in execution claim were established by clear and convincing evidence, direct proof of intention that cuts against the text’s plain meaning, along with other proof of intention can be evaluated by the court. The full range of direct and circumstantial proof relevant to intent can be considered in a reformation action.

If you are concerned about a mistake in execution in Ocala, you can hire an aggressive lawyer who understands probate litigation. It’s important to act swiftly when a will is currently in probate. Those who are interested persons and have received formal notice of a Florida probate case have a limited time within which to challenge the will. Michael E. Dean and Timothy S. Dean possess decades of combined experience as trial attorneys. Contact us at (352) 387-8700 or via our online form to set up a free consultation.