Wills are sometimes unclear. Whether due to sloppy work by an attorney or a do-it-yourself approach, there is sometimes a need for a court to step in to help clarify what a Florida Last Will and Testament actually means.
But what if there is no ambiguity to the will? Can the court still step in to change the terms of a person’s Last Will and Testament if there is no question about what those terms mean?
Historically, the answer has been “no.” Florida probate law restricted the courts’ ability to make changes to the unambiguous terms of a will. If a person could read the will and understand what it says, the court could not change the terms of the will even if there was clear evidence that that, in spite of what the will said, the testator intended something else.
For example, suppose that a mother sits down with her son, telling him that she is near death and is unsure how to dispose of her rare automobile when she dies. The son tells his mother that his sister did not want the car, which is not true, and the mother executes a will leaving the car to her son.
Under prior law, the court would not have been able to change the will even though the mother was operating under a mistaken assumption. The sister may would have a case against the son for fraud, but since the will was clear the court could not change it.
But Florida probate law was recently amended to address this scenario. Under the new law, anyone can ask a court to change the terms of a will. The court may (but is not required to) change the will if it is shown by “clear and convincing evidence” that a mistake of fact or law caused the will to reflect something other than the testator’s true intent.
This may sound confusing, but just remember that the underlying purpose to probate law is to give effect the true intentions of the decedent, who obviously cannot be asked what he or she meant.
The new law simply recognizes that even a clearly-drafted will can be based on a mistake or fraud and gives the court flexibility to consider these issues.
As with any change in the law, there are tradeoffs. On the positive side, the new law does get at the underlying intent of the testator, which is clearly the correct standard to apply.
But one could argue that the old law has compelling justifications as well. Specifically, it prevented a “he said, she said” situation where the court had to look to testimony outside of what the terms of the will. The legislature simply assumed that if someone went through the trouble of meeting Florida requirements for a valid will, the will would reflect the person’s intent, without any need to consider external evidence.
The new law may reflect the legislature’s recognition that the Florida probate judges are intelligent enough to pinpoint attempted fraud in the probate process. By giving these judges the right to consider external evidence even when the will is clear, the law now allows testimony that will help the courts understand the testator’s true intent.