Will Contest / Caveat Petition Package

WILL CONTEST / CAVEAT PETITION PACKAGE — FLORIDA

TABLE OF CONTENTS

1. Pre-Suit Investigation Checklist
2. Caveat by Interested Person (Fla. Stat. § 731.110)
3. Verified Petition for Revocation of Probate (Fla. Stat. § 733.109; Fla. Prob. R. 5.270)
4. Verification
5. Formal Notice to Interested Persons
6. Discovery Plan
7. Trial-Ready Elements and Burden of Proof
8. Family Settlement Agreement
9. Florida Practice Notes
10. Sources and References

1. PRE-SUIT INVESTIGATION CHECKLIST

A. Decedent and Probate Background

• ☐ Full legal name of decedent: [________________________________]
• ☐ Date of death: [__/__/____]
• ☐ County of residence at death (venue under Fla. Stat. § 733.101): [____]
• ☐ Date of propounded will: [__/__/____]
• ☐ Date probate opened / case no.: [____] / [____]
• ☐ Date will admitted to probate: [__/__/____]
• ☐ Date Notice of Administration served on client (if any): [__/__/____]
• ☐ § 733.212(3) 90-day deadline: [__/__/____]
• ☐ Final discharge entered? ☐ Yes ☐ No
• ☐ Outer limit (4 yrs from admission, § 95.11): [__/__/____]
• ☐ Self-proving affidavit (§ 732.503) attached?

B. Standing (§ 731.201(23) "Interested Person")

• ☐ Heir at law's intestate share (Fla. Stat. § 732.101 et seq.) quantified
• ☐ Prior-will devise quantified
• ☐ Elective-share rights of surviving spouse (§ 732.201)
• ☐ Pretermitted child / spouse rights (§§ 732.301, 732.302)
• ☐ Homestead implications (Fla. Const. art. X, § 4)

C. Capacity Investigation

• ☐ Medical records (PCP, neurology, psychiatry, hospital, SNF, hospice, home care)
• ☐ Prescription history (psychotropics, opioids, anticholinergics, steroids)
• ☐ Cognitive testing (MMSE, MoCA, SLUMS)
• ☐ Documented diagnoses (Alzheimer's, vascular dementia, Lewy body, delirium)
• ☐ Records demonstrating mental state on the precise date of execution (York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980))
• ☐ Capacity expert retained

D. Drafting Attorney / Execution

• ☐ Drafting attorney identified: [________________________________]
• ☐ Drafting attorney's complete file requested (Tate v. Tate)
• ☐ Attesting witnesses identified (at least 2 per § 732.502)
• ☐ Self-proving affidavit notary identified
• ☐ Video / audio recording of execution requested

E. Undue Influence (Carpenter / RBC Ministries)

• ☐ Substantial benefit to alleged influencer documented
• ☐ Confidential relationship established
• ☐ Active procurement factors (Carpenter):
• ☐ Presence at execution
• ☐ Recommendation of attorney
• ☐ Knowledge of contents before execution
• ☐ Instructions provided to attorney
• ☐ Securing of witnesses
• ☐ Safekeeping of will after execution
• ☐ Isolation of decedent
• ☐ Vulnerability of decedent

F. Financial Records

• ☐ Bank, brokerage, retirement statements (3 years pre-execution)
• ☐ Real-property transfer records (homestead implications)
• ☐ Beneficiary-designation changes (POD/TOD/IRA/life insurance)
• ☐ POA executions and agent actions

G. Prior Estate Plans

• ☐ All prior wills located (court archives, drafting attorney files)
• ☐ Revocable trust(s) located
• ☐ Pattern of dispositions mapped

2. CAVEAT BY INTERESTED PERSON (FLA. STAT. § 731.110)

2.1 CAPTION

IN THE CIRCUIT COURT FOR [________________________________] COUNTY, FLORIDA

PROBATE DIVISION

FILE NO. [________________________________]

CAVEAT BY INTERESTED PERSON (Fla. Stat. § 731.110; Fla. Prob. R. 5.260)

[CAVEATOR'S NAME] ("Caveator"), being an interested person under Fla. Stat. § 731.201(23), files this Caveat and states:

1. Identity and Standing. Caveator is the [relationship — e.g., son, daughter, spouse, devisee under a prior will] of [DECEDENT'S NAME] and is an interested person within the meaning of Fla. Stat. §§ 731.110 and 731.201(23).

2. Apprehension. Caveator is apprehensive that an estate of the above-named [decedent / person who has not yet died, but is __ years old and in failing health] will be administered, or that a will may be admitted to probate, without Caveator's knowledge.

3. Effect Requested. Caveator demands that, pursuant to Fla. Stat. § 731.110(3) and Fla. Prob. R. 5.260(f), the Court NOT admit any will to probate, NOT appoint a personal representative, and NOT enter any order materially affecting the estate, until formal notice of the petition for administration has been served on Caveator (or Caveator's designated agent) and Caveator has had an opportunity to participate in the proceedings.

4. Designated Agent for Service (required if Caveator is a nonresident not represented by Florida counsel who signs this Caveat):

Name: [________________________________]
Florida Address: [________________________________]
Telephone: [________________________________]

5. Will Attached (if applicable, § 733.203(1)): A copy of the will [________________________________] under which Caveator claims is attached.

6. Pre-Death Caveat (if applicable): This Caveat is filed before the death of the person for whom the estate will be administered and shall expire 2 years from filing under § 731.110(4).

Date: [__/__/____]

[________________________________]
[CAVEATOR / ATTORNEY SIGNATURE]
[Bar No., Address, Phone, Email]

Notice to Clerk: Index this Caveat against the name of the decedent (or potential decedent) and apply Rule 5.260 / § 731.110 to all subsequent filings.

3. VERIFIED PETITION FOR REVOCATION OF PROBATE (FLA. STAT. § 733.109; FLA. PROB. R. 5.270)

3.1 CAPTION

IN THE CIRCUIT COURT FOR [________________________________] COUNTY, FLORIDA

PROBATE DIVISION

FILE NO. [________________________________]

VERIFIED PETITION FOR REVOCATION OF PROBATE (Fla. Stat. § 733.109; Fla. Prob. R. 5.270)

[PETITIONER'S NAME] ("Petitioner"), by undersigned counsel, petitions this Court to revoke probate of the will admitted [__/__/____] and states:

3.2 PETITIONER'S INTEREST IN THE ESTATE (Fla. Prob. R. 5.270(a))

3.2.1 Petitioner is [age, residence], the [heir-at-law / devisee under prior will / surviving spouse / pretermitted child] of [DECEDENT'S NAME] ("Decedent"). Petitioner is an "interested person" within the meaning of Fla. Stat. § 731.201(23) because Petitioner may reasonably be expected to be affected by the outcome of this proceeding.

3.2.2 Petitioner would receive [share/property] under [intestate succession / a prior will of Decedent dated __/__/____] but is [disinherited / reduced] under the propounded instrument admitted to probate on [__/__/____] (the "Will").

3.3 TIMELINESS

3.3.1 [If Notice of Administration was NOT served on Petitioner:] No Notice of Administration under Fla. Stat. § 733.212 has been served upon Petitioner, and accordingly Petitioner is not barred from instituting this proceeding under § 733.212(3).

3.3.2 [If Notice WAS served:] Petitioner was served with Notice of Administration on [__/__/____], and this Petition is filed within 90 days of that service as required by § 733.212(3). [OR explain narrow Fla. Stat. § 733.213 exception — fraud, duress, etc. preventing earlier objection.]

3.3.3 The personal representative has not been finally discharged.

3.4 FACTS CONSTITUTING GROUNDS FOR REVOCATION (Fla. Prob. R. 5.270(a))

COUNT I — Lack of Testamentary Capacity (Fla. Stat. § 732.501)

3.4.1 On [__/__/____], the date the Will was executed, Decedent did not have a "sound mind." Under the three-part test of In re Bailey's Estate, 122 So. 2d 243 (Fla. 2d DCA 1960), Decedent could not generally understand (a) the nature and extent of the property to be disposed of, (b) Decedent's relation to those who would naturally claim a substantial benefit, and (c) the practical effect of the Will as executed.

3.4.2 Decedent suffered from [diagnosis: e.g., advanced Alzheimer's disease, vascular dementia, delirium] and was taking [medications], as documented by [medical records]. Capacity is measured at the precise moment of execution (York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980)).

COUNT II — Undue Influence (In re Carpenter's Estate, 253 So. 2d 697 (Fla. 1971))

3.4.3 The Will is the product of undue influence exercised by [ALLEGED INFLUENCER]. The Carpenter presumption arises:

(a) [INFLUENCER] is a substantial beneficiary under the Will, taking [property/share];

(b) [INFLUENCER] occupied a confidential relationship with Decedent as [caregiver / fiduciary / agent under POA / cohabitant / close family member]; and

(c) [INFLUENCER] was actively involved in procurement of the Will. Procurement factors present include:

• ☐ Presence at the execution;
• ☐ Presence on occasions when Decedent expressed a desire to make a will;
• ☐ Recommendation of the drafting attorney;
• ☐ Knowledge of the contents prior to execution;
• ☐ Giving instructions to the drafting attorney;
• ☐ Securing witnesses;
• ☐ Safekeeping the Will after execution;
• ☐ Isolation of Decedent from family / prior advisors.

3.4.4 Contestants need not prove every Carpenter factor (RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008)); presence of multiple factors raises the presumption and shifts the burden to the proponent to come forward with a reasonable explanation.

COUNT III — Fraud

3.4.5 The Will is the product of fraud in the [execution / inducement]. [INFLUENCER] knowingly made material false representations to Decedent for the purpose of inducing the disposition reflected in the Will, including [specifics].

COUNT IV — Duress

3.4.6 [State factual basis of duress / coercion.]

COUNT V — Improper Execution (Fla. Stat. § 732.502)

3.4.7 The Will was not executed with the formalities required by Fla. Stat. § 732.502 in that, on information and belief, (a) Decedent did not sign at the end; or (b) two attesting witnesses were not present at the same time; or (c) the witnesses did not sign in Decedent's presence and in the presence of each other; or (d) the self-proving affidavit is defective under § 732.503.

COUNT VI — Revocation (Fla. Stat. §§ 732.505, 732.506)

3.4.8 The Will was revoked before Decedent's death by [a subsequent will dated __/__/____ executed with the formalities of § 732.502 / Decedent's physical act of cancellation, obliteration, or destruction with intent to revoke under § 732.506].

COUNT VII — Mistake / Insane Delusion

3.4.9 [State factual basis of mistake in contents or in execution; or that Decedent acted under an insane delusion as to a material fact that caused the disposition.]

3.5 RELIEF REQUESTED

WHEREFORE, Petitioner respectfully requests that this Court:

A. Revoke the order admitting the Will to probate;

B. Admit the prior will of Decedent dated [__/__/____] to probate, OR declare intestacy under Fla. Stat. Chapter 732, Part I;

C. Order the personal representative not to make any distribution contrary to the rights of those who would take but for the Will (§ 733.109(2));

D. Remove [PERSONAL REPRESENTATIVE] for cause under Fla. Stat. § 733.504;

E. Award costs, and attorneys' fees as authorized by Fla. Stat. § 733.106 (services benefiting the estate; bad-faith conduct);

F. Grant such other relief as the Court deems just.

Date: [__/__/____]

[________________________________]
[ATTORNEY NAME, FBN]
Attorney for Petitioner

4. VERIFICATION

STATE OF FLORIDA )
COUNTY OF [________________________________] )

Under penalties of perjury, I declare that I have read the foregoing Verified Petition for Revocation of Probate and that the facts alleged therein are true and correct to the best of my knowledge and belief, except as to those matters stated on information and belief, which I believe to be true.

Executed on [__/__/____] in [CITY], Florida.

[________________________________]
PETITIONER'S SIGNATURE

(Sworn to before notary required for in-person verification under Fla. Stat. § 92.525.)

STATE OF FLORIDA )
COUNTY OF [________________________________] )

Sworn to and subscribed before me by means of ☐ physical presence or ☐ online notarization on [__/__/____] by [PETITIONER'S NAME], who is personally known to me or produced [________________________________] as identification.

[________________________________]
NOTARY PUBLIC, STATE OF FLORIDA

5. FORMAL NOTICE TO INTERESTED PERSONS

5.1 FORMAL NOTICE (FLA. PROB. R. 5.040)

TO: [PERSONAL REPRESENTATIVE] and every other interested person identified below.

You are hereby notified that a Verified Petition for Revocation of Probate has been filed in the above-captioned estate. A copy is served with this Notice.

You are required to serve written defenses on the undersigned attorney and to file the original with the Clerk of this Court within 20 days after service of this Notice, exclusive of the day of service. Failure to serve and file written defenses as required may result in a judgment or order for the relief demanded in the Petition, without further notice.

Date: [__/__/____]

[________________________________]
[ATTORNEY NAME, FBN]
Attorney for Petitioner

5.2 SERVICE LIST

6. DISCOVERY PLAN

6.1 Document Discovery

• ☐ Drafting attorney's complete file — subpoena duces tecum
• ☐ Prior wills, codicils, and trust instruments
• ☐ Medical records — PCP, specialists, hospital, SNF, hospice, home health
• ☐ Prescription records
• ☐ Bank, brokerage, retirement, and trust account statements
• ☐ Beneficiary-designation change records
• ☐ Real-property records (homestead, transfers in suspect period)
• ☐ POA documents and agent's accounting
• ☐ Communications between Decedent, proponent, drafter, and witnesses

6.2 Depositions

• ☐ Drafting attorney (privilege does not apply to communications relevant to the will — § 90.5021 / Tate v. Tate, 894 So. 2d 1075 (Fla. 4th DCA 2005))
• ☐ Attesting witnesses
• ☐ Notary
• ☐ Personal representative
• ☐ Alleged influencer / primary beneficiary
• ☐ Treating physicians
• ☐ Caregivers / home-health aides
• ☐ Accountant / financial advisor

6.3 Written Discovery

• ☐ Interrogatories (limited to 30 per side under Fla. R. Civ. P. 1.340 absent leave)
• ☐ Requests for production
• ☐ Requests for admission

6.4 Experts

• ☐ Geriatric psychiatrist / neuropsychologist (capacity)
• ☐ Forensic document examiner (signature / handwriting)
• ☐ Forensic accountant (financial-abuse pattern)

6.5 Continued Administration During Contest

Under § 733.109(2) and Rule 5.270(b), the personal representative shall continue administering the estate but may not make distributions in contravention of the rights of those who would take but for the Will. Move for an order restraining distributions if necessary.

7. TRIAL-READY ELEMENTS AND BURDEN OF PROOF

7.1 Burden Allocation (Fla. Prob. R. 5.275; Fla. Stat. § 733.107)

7.2 Jury Trial

Florida does NOT permit jury trials in probate proceedings. All issues are tried to the circuit judge sitting in the probate division.

7.3 Key Elements

Capacity (Bailey): general understanding of (1) nature/extent of property, (2) relations to natural beneficiaries, and (3) practical effect of the will — measured at moment of execution.

Undue Influence Presumption (Carpenter): substantial beneficiary + confidential relationship + active procurement. Once raised, § 733.107(2) shifts the burden of proof to the proponent to establish the will is not the product of undue influence by a preponderance.

Formal Execution (§ 732.502): two witnesses present at same time signing in presence of testator and each other; testator signing or acknowledging at the end.

8. FAMILY SETTLEMENT AGREEMENT

8.1 FAMILY SETTLEMENT AGREEMENT TEMPLATE

FAMILY SETTLEMENT AGREEMENT — ESTATE OF [DECEDENT]

This Family Settlement Agreement is entered into on [__/__/____] by and among the following interested persons (the "Parties"):

[List Parties and counsel.]

RECITALS

A. Decedent died on [__/__/____] and the propounded will dated [__/__/____] was admitted to probate in File No. [____].

B. Petitioner filed a Verified Petition for Revocation of Probate under § 733.109 asserting [grounds].

C. The Parties wish to resolve all disputes.

AGREEMENT

1. Distribution. The estate shall be distributed as follows: [table].

2. Dismissal. Within 10 days of court approval (if required) or execution by all Parties, Petitioner shall file a Notice of Voluntary Dismissal with prejudice of the Petition for Revocation.

3. Mutual Releases. Each Party releases every other Party from all claims arising out of or relating to Decedent's estate, lifetime transfers, agency, fiduciary roles, and any related matters, except for obligations created by this Agreement.

4. No Forfeiture Provision. Because Florida does not enforce in terrorem clauses in wills (Fla. Stat. § 732.517), the Parties acknowledge that no Party forfeits any inheritance by execution of, or proceedings under, this Agreement.

5. Court Approval. The Parties shall jointly seek court approval if any Party is a minor or incapacitated person. A guardian ad litem shall be appointed for any such Party.

6. Personal Representative. [Designate successor PR if applicable.]

7. Confidentiality. [Optional.]

8. Attorney's Fees and Costs. Each Party bears its own.

9. Governing Law. Florida.

[Signature blocks with notary acknowledgments]

9. FLORIDA PRACTICE NOTES

1. The 90-Day Trap (§ 733.212(3)): When an interested person is served with the Notice of Administration, the 90-day clock starts for objections to the will's validity, the PR's qualifications, venue, and jurisdiction. Failure to object within 90 days is an absolute bar (subject to narrow § 733.213 exceptions for fraud, misrepresentation, or misconduct).

2. No Jury Trials in Probate: Florida probate proceedings are tried to the court. There is no jury right in will contests.

3. No-Contest Clauses Unenforceable (§ 732.517): Florida is a minority state — in terrorem clauses in wills are void. Contestants take no risk of forfeiture by good-faith challenge.

4. Carpenter Presumption — Burden Shift: This is the strongest pro-contestant feature of Florida law. Once the contestant proves substantial beneficiary + confidential relationship + active procurement, the burden of proof (not just production) shifts to the proponent under § 733.107(2).

5. Caveat by Pre-Death Filing: A caveat may be filed BEFORE decedent's death (§ 731.110(1)) by an interested person (other than a creditor). This is a unique Florida tool to ensure notice and prevent surprise probate.

6. Formal Notice and the 20-Day Rule (Rule 5.040): Revocation petitions are adversary proceedings served by formal notice; respondents have 20 days to file defenses.

7. Continued Administration: A revocation petition does not stay administration but freezes distributions inconsistent with the rights of intestate or prior-will takers (§ 733.109(2)).

8. Self-Proving Affidavit (§ 732.503): Creates prima facie proof of due execution. Contestants must overcome with evidence; the witnesses need not be located unless their testimony is needed.

9. Homestead Constraints (Fla. Const. art. X, § 4): Devise of homestead is restricted where the decedent is survived by a spouse or minor child; this affects both the contest and any settlement.

10. Trust Contests in Parallel: If a parallel revocable trust exists, Fla. Stat. § 736.0207 governs and a 6-month limitations period may apply after notice. Coordinate strategy.

10. SOURCES AND REFERENCES

• Fla. Stat. §§ 731.110, 731.201, 731.301
• Fla. Stat. §§ 732.501, 732.502, 732.503, 732.505, 732.506, 732.517
• Fla. Stat. §§ 733.107, 733.109, 733.212, 733.2123, 733.106
• Fla. Prob. R. 5.025, 5.040, 5.080, 5.260, 5.270, 5.275
• In re Carpenter's Estate, 253 So. 2d 697 (Fla. 1971)
• RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008)
• In re Bailey's Estate, 122 So. 2d 243 (Fla. 2d DCA 1960)
• York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980)
• Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th DCA 2000)
• Tate v. Tate, 894 So. 2d 1075 (Fla. 4th DCA 2005) (drafting-attorney privilege)
• American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998)
• Local administrative orders of the probate division — verify before filing