Cape Coral Probate and Trust Litigation Lawyer

Are you in need of sound, proven legal leadership for an upcoming probate proceeding, or the guidance of a lawyer whose skills can serve your interests in trust litigation?

I am Robert C. Adamski. For almost 30 years, I have offered quality legal representation to Floridians who have probate problems and nagging trust disputes that call for litigation skills they can count on.

If those issues sound all too familiar, contact my Cape Coral law offices, part of the oldest established law practice in the city, to schedule your initial consultation.

Contested Florida Wills and Trusts

There are many circumstances in which a beneficiary who has been wrongfully deprived of his or her inheritance can recover what is rightfully theirs. The procedures usually involve attacking the will or trust that deprived the beneficiary in the first place. In addition, gifts made before death can be overturned if they were procured by fraud or undue influence.

My well-known statewide probate law and estate litigation practice helps beneficiaries contest wills and trusts, and represents administrators of estates in wills or trusts that are contested on grounds such as:

  • Lack of testamentary capacity
  • Undue influence
  • Mistake
  • Insane delusion
  • Fraud and duress
  • Failure to execute with required formalities
  • Revocation

The principals of standing and grounds for contesting trusts are generally the same as those for contesting a will. The judicial procedures are somewhat different but the actions are heard in the same circuit courts.

Wherever your probate or trust litigation goes, I will be in your corner at all times, with all the knowledge and resources at my command, protecting your rights and interests. I can advise as to grounds and standing, procedures and cost, gifts and bequests, remedies and pre-death transfers. Working together, we will work to emerge with a resolution you can live with.

By Phone, Fax or E-Mail

I want to hear the details of your probate and trust litigation legal needs. I am Robert Adamski, counsel to countless Floridians over the past 30 years, inviting you to contact me for the arrangement of your initial consultation at my Cape Coral law offices. I am available by phone, fax and e-mail, and return after-hours communications promptly.

Florida Wills and Trust Litigation

There are many circumstances where a beneficiary who has been wrongfully deprived of his or her inheritance can recover what is rightfully theirs. The procedures usually involve attacking the will or trust which deprived the beneficiary of their inheritance. In addition, gifts made before death to others can be overturned if procured by fraud or undue influence.

I am Robert C. Adamski, an attorney in Cape Coral, Florida with a statewide probate and estate litigation practice. Since 1979 I have helped beneficiaries contest wills and trusts. I also represent administrators of estates in defending contests to will or trusts.

The following provides an overview of grounds for contest of a Florida will or trust:

Grounds to Contest a Will or Trust

Who Has Standing to bring a Will Contest in Florida?

Florida Trust Contests

Interference with Expected Gift or Bequest

Trust and Accounting Actions

Grounds to Contest a Florida Will or Trust

Wills and trusts can be contested on the same grounds. The rules governing will contests set forth below apply to contesting a trust, as well.

Lack of Testamentary Capacity

It is generally held that, to execute a valid will in Florida, the decedent need only have the ability to understand, in a general way, (1) the nature and extent of the property to be disposed of, (2) his or her relationship to those who would naturally claim a substantial benefit from his or her will (i.e., the "natural objects of his or her bounty"), and (3) a general understanding of the practical effect of the will as executed. The burden of proving lack of testamentary capacity is upon the party filing a will contest and must be sustained by a preponderance of the evidence.

Undue Influence

Undue influence is one of the most common grounds for attempting to set aside a last will. In Florida, a presumption of undue influence will arise, if the contestant can show that the alleged undue influencer (a) is a substantial beneficiary under the will; (b) occupied a confidential relationship to the decedent; and (c) was "active in procuring" the will.

In 2002, the Florida legislature amended Florida Statutes § 732.107(2) to provide that once the presumption of undue influence is established it has the effect of shifting the burden of proof to the proponent of the will. This is a significant change from the prior law.

Under Florida Statutes § 733.107(2), the presumption of undue influence now has the effect of shifting the burden of proof to the proponent of the will to provide tat the will was not the product of undue influence. Florida Statutes § 733.107(2) provides that the "presumption of undue influence implements public policy against the abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304 of the Florida Evidence Code.


A will procured by a mistake is void. The mistake necessary to set aside the will must be what is called a mistake in execution. For example, the testator executed a will believing it to be another document. Neither a mistake of fact (also referred to as a mistake in the inducement) nor a mistake in the contests of the will is sufficient to invalidate a will.

Insane Delusion

As set forth above, a mistake of fact is not enough to set aside a will. However, if the mistake of fact arises to the level of insane delusion, the will can be set aside. An insane delusion is a form of incapacity based upon the contention that the testator's will was the product of a diseased mind that caused the testator to reach a mistaken conclusion having no basis in fact. The Florida Supreme Court has defined insane delusion as fixed false belief "without any evidence of any kind to support it, which can be accounted for on no reasonable hypothesis, having no foundation of reality.

Fraud and Duress

The fraud to set aside a will can be either in the execution of the will or in the inducement to make the devise. Fraud in the execution occurs when the testator is told that the document he or she is signing is something other than a will. Fraud in the inducement occurs when the testator was intentionally misled by a material fact which caused the testator to make a different devise than he or she would have otherwise made. Duress involves some threat of physical harm or coercion practiced upon the testator.

Failure to Execute with the Required Formalities

Florida Statutes § 732.502 sets forth the formalities necessary to execute a valid will in Florida. The required formalities are as follows: (a) the will must be signed by the testator, or the testator's name must be subscribed by another person in the testator's presence and by the testator's direction; (the testator must sign at the end of the will); (c) presence of the witness; (d) there must be at least two attesting witnesses; (e) the witnesses must sign the will in the presence of the testator; and (f) the witnesses must sign the will in the presence of each other. Any will other than holographic or oral will, executed by a nonresident of Florida, is valid in Florida if it is valid under the laws of the state or country where it was executed.


A will can be revoked in Florida by a subsequent validly executed inconsistent will or codicil, Florida Statutes § 732.505, or by physical act of the testator, or another person in the testator's presence and at the testator's direction, such as burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation, Florida Statutes § 732.506 a testator cannot revoke a portion of the will by physical act. An attempted partial revocation by physical act is invalid and the part the testator attempted to revoke can be admitted to probate if it can be recreated.

When a will which is know to be in the possession of the testator cannot be found after the testator's death, a presumption arises that the will was destroyed by the testator with the intention of revocation. The presumption may be overcome by proof that persons with an adverse interest in destroying the will had an opportunity to do so.

Who Has Standing to bring a Will Contest in Florida?

Florida Statutes § 733.109 provides that any "interested person" may petition for revocation of probate. An interested person is defined under the Florida Statutes § 731.201 as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.


An heir at law (a person would take by intestacy) generally has standing to contest a will. However, if there are prior wills that exclude the contestant, the contestant must also prove that the prior wills are invalid or that the doctrine of dependent relative revocation does not apply.

Beneficiary and Personal Representative under Prior Will

A beneficiary or personal representative under a prior will has standing to contest a will in Florida.

Proper Parties

Pursuant to Florida Statutes § 733.109(1)(b), formal notice of the petition must be given to the personal representative and all interested persons. This would include all beneficiaries under the intervening wills which are being challenged.

Time for Contests

The time frame within a petition for revocation of probate and/or objection to the petition for administration must be filed depends upon the method in which an individual or entity was provided with notice of the probate proceedings. Bring the contest as soon as possible following the decedent's death is the general rule. Delay allows the wrong-doer to transfer and hide assets, causes witnesses to forget facts, and generally undermines the case.

Effect of filing a "Caveat"

A person can file a "Caveat" with the probate court. Once a caveat is filed, the person filing the caveat is entitled to formal notice of the petition for administration and is given an opportunity to object to the petition before the will is admitted to probate. The practical effect of a caveat is that it forces the will contest to occur prior to the will being admitted to probate. For example, once the will is admitted to probate, the personal representative defending the will has access to all the records of the decedent. In addition, the personal representative can use estate funds to defend the contest. The procedures for filing a caveat are found in Florida Statutes § 731.110 and Florida Probate Rule 5.260.

A successful will contestant can generally recover their fees and costs from the assets of the estate pursuant to Florida Statutes § 733.106 and the Florida Common Fund rule.

Florida Trust Contests

Grounds and Standing to Contest

The principals and standing and grounds for contesting trusts are generally the same as those for contesting a will as outlined above. The judicial procedures are somewhat different, but the actions are heard in the same circuit courts.

Time for Contests

Florida Statutes provide that an action to contest the validity of all or part of a trust may not be commenced until the trust becomes irrevocable. In the case of a living revocable trust irrevocability usually occurs when the person making the trust dies. The time limits within which a contestant must challenge a trust after the trust become irrevocable are, in this author's opinion, uncertain in Florida. It appears that the four or five year statute of limitations set forth in Florida Statutes § 95.11 most likely governs. In any event, most practitioners would agree that an inter vivos trust can be contested well after the time for contesting a will has already run.

Procedure for filing

The trust contest should generally be filed as a separate complaint apart from the petition for revocation of probate.

Fees and Costs in a Trust Contest

A successful trust contestant can generally recover their fees and costs from the assets of the trust estate pursuant to Florida Statutes and the Florida common fund rule.

Interference with an Expected Gift or Bequest


Florida recognizes a cause of action for "tortious interference with an expected inter vivos or testamentary gift or bequest". The plaintiff in a tortious interference case must prove that the decedent had a fixed intention to leave a portion of his or her estate to the plaintiff and a strong probability existed that the decedent would have carried out his or her intention but for the wrongful acts of the defendant.

Plaintiff Must Have No Adequate, Alternative Remedy

Florida courts hold that a plaintiff can only bring action for tortious interference if he or she has no adequate remedy in probate. If the plaintiff could have obtained the relief being sought in probate by successfully attacking the decedent's will, the plaintiff cannot maintain an action for tortious interference for loss of the expectancy under the will. However, the failure to successfully attack the will should not preclude the plaintiff from seeking damages for loss of inheritance caused by circumstances that no not involve the validity of the will.


The remedies available in a tortious interference action include damages and/or the imposition of a constructive trust upon the fraudulent gift. (Damages can include not only the lost gift but past and future mental or emotional distress resulting from interference.)

Pre-Death Transfers

Transfers made by the decedent prior to death are voidable on the grounds of fraud, duress, mistake, undue influence, and lack of capacity. The cause of action to set aside such transfers lies with the personal representative of the decedent's estate.

Trust and Accounting Actions

Beneficiaries' Right to Information

Pursuant to Florida Statutes, all beneficiaries of an irrevocable trust, including current income and principal beneficiaries and reasonably ascertainable remainder beneficiaries, are entitled to a complete copy of the trust instrument and all relevant information relating to the assets of the trust and particulars relating to administration. To protect the privacy interests of a grantor while he or she is alive the beneficiaries of a revocable trust, other than the grantor or the grantor's representative, are generally not entitled to a copy of the trust document or trust information relating to the administration of the trust.

Beneficiaries' Rights to an Accounting

In addition, beneficiaries of an irrevocable trust are generally entitled to an accounting at least annually. Florida Statutes set forth the information which must be included in all accountings rendered after January 1, 2003. Beneficiaries of a trust also have a common law right to demand an accounting from the trustees of a trust. As a matter of public policy, the right to an accounting is not capable of being waived by the settlor in the trust instrument.

Limitations of Trust Accounting Actions

For all accounting periods commencing on or after January 1, 2003 and to all written reports received by a beneficiary on or after January 1, 2003, three separate limitation periods may apply, depending upon the disclosures made in the accounting and the notice provided.

A beneficiary who receives a "trust disclosure document" adequately disclosing any matter is barred from bringing action concerning the matter disclosed against the trustee unless a proceeding to assert the claim commenced within 6 months after receipt of the "trust disclosure document" or the "limitation notice" that applies to the trust disclosure document, whichever is later.

All claims against a trustee who has issued a "trust disclosure document" adequately disclosing a matter are limited to six months. But claims by those who did not receive a trust disclosure document from the trustee are limited to four years under Chapter 95 of Florida Statutes.

Notwithstanding lack of adequate disclosure or delivery of a limitation notice, all claims against a trustee who has issued a final trust accounting and who has informed the beneficiary of the availability and location of the records are barred as provided in Chapter 95, Florida Statutes.

Fees and Costs

Fees and costs may be awarded to a trust beneficiary who provides a benefit to the trust estate in connection with an accounting pursuant to Florida Statutes. Further, Florida Statutes provide that, in all actions challenging the proper exercise of the trustee's powers, costs, including attorney's fees, shall be awarded in chancery actions.

Contact Cape Coral, Florida estate and probate litigation lawyer Robert C. Adamski. Se habla español.

Attorney Robert Adamski provides estate planning, probate, and real estate services for clients throughout Florida, including Cape Coral, Naples, Fort Myers, North Fort Myers, Punta Gorda, and Lee County.