Florida Probate Lawyer Blog

A Will can be rescinded if testator executed it based on irrational belief

I have often run in the cases where an elderly person changes a will or trust because of a belief the elderly person expressed to third parties that turned out to be false.   An all too common situation is that Child 1 is taking care of Parent and stealing Parent’s money.  Child 1 tells Parent that Child 2 (who is innocent) is after Parent’s money and is stealing it.  Parent then goes to attorney and tells attorney to cut Child 2 out of the will.  Parent then dies and Child 2 finds out that she has been cut out of the will.  In this scenario Child 2 can always sue to set aside the will after Parent’s death by claiming the will was the product of undue influence.  But sometimes undue influence is not a strong case.  For example, if Child 1 did not procure the will that cut out Child 2, then undue influence can be hard to prove. 

However, there are other options to have the will revoked.  Child 2 could seek to set aside the will because Parent was suffering from and “insane delusion” when Parent requested that attorney change the will.  To establish and insane delusion, Child 2 would have to prove that: (1) the will would not have been executed but for the delusion, (2) the delusion is defined as a belief of a fact which has no basis in fact, and (3) the belief (leading to the change of the will) is persistently adhered to despite all evidence and reason.  What is interesting about the concept of insane delusion is that it originates from some very old cases, but is still followed by the Florida courts.  If you suspect this is happening to your loved one or someone you know, contact Matthew A. Linde, P.A. for more information.