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What Happens to a Florida Estate If the Will is Invalidated?


There are many scenarios where a person’s last will and testament may be found invalid by the court. A successful will contest may be the result of undue influence, fraud, or proof that the decedent lacked mental capacity at the time the will was executed. But if a will is invalidated, what becomes of the decedent’s estate?

The Doctrine of Dependent Relevant Revocation

Absent any valid will, the estate is declared intestate and distributed according to the provisions of Florida law regarding inheritance. But if the decedent had a prior will (or trust) that was valid, it may be possible to revert to the earlier document. Indeed, Florida courts have long recognized an old English common-law rule known as the “doctrine of dependent relevant revocation.” As explained by the Florida Supreme Court in a 1940 decision, this doctrine holds that where a testator “makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent upon the validity of the new one, testator preferring the old will to intestacy.”

The doctrine only applies, however, if the terms of the invalidated will are “substantially similar” to the prior document. For example, in a 2005 case, the Florida Fifth District Court of Appeal said the doctrine could apply to a case where a decedent made multiple wills during her lifetime, all of which reflected her intention “not to devise any portion of her estate to her children.” And in 2015, the Second District Court of Appeal held that in cases involving undue influence the courts should “incline toward a broader definition of similarity” when deciding whether to invoke the doctrine.

The Second and Fifth Districts disagree, however, on what kinds of evidence courts may look at when assessing whether two wills are substantially similar. The Fifth District said a judge should “confine its inquiry to the testamentary documents before it without resort to extrinsic evidence.” In contrast the Second Circuit, whose rulings bind judges here in Fort Myers and throughout Lee County, held that “extrinsic evidence may be essential in order to grasp the true testamentary intentions of a testator who has left multiple wills, some of which may or may not have been affected, to some degree, by another’s undue influence.” The Florida Supreme Court has yet to resolve this conflict between the two appeals courts.

Speak With a Florida Will Contest Attorney Today

Will contests are often complex. Beyond sorting out the legal issues, there is the emotional toll exacted on family members and other interested parties. This is why if you may be involved in a will contest, either as the executor of the estate or a potential challenger, you should work with an experienced Fort Myers probate litigation attorney who can guide you through the process. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation today.


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