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Attacking a Florida Trust Before You Accept Benefits: the estoppel rule

Uncategorized Sep 4, 2013

Suppose that a loved one passes away and they leave you, say, $10,000, under a Florida will or from a Florida trust.   Should you take that $10,000 if you believe that the will or trust is invalid and you want to attack it?  Are you able to take the $10,000 on a Monday, and then, say, on a Tuesday, file a probate lawsuit to declare the will or trust void, saying that it was obtained by undue influence?  In Florida, beneficiaries of a will or a trust should not accept the benefits of a trust or a will prior to then attacking the trust’s or will’s validity.  You can’t have your cake and eat it too—most times.  The will or trust is either invalid, in which case you don’t get the $10,000, or it’s valid, in which case you get the $10,000 (but can’t attack it.)  Be cautious when you want to take inconsistent positions.  The Second District Court of Appeals for Florida spoke about this estoppel principle in its Frantak decision, August 23, 2013.    And while Florida does permit parties to a lawsuit to take alternative positions, be careful to coordinate litigation strategy. Advocate hard.  Litigate smart.