Another way of framing this issue is by asking the following question: who would have “standing” to challenge the client’s will or trust? In Florida that question is answered largely by determining if the potential litigant would be considered an “interested person” in the client’s estate. The term “interested person” is broadly defined in F.S. §731.201(21), and explicitly includes personal representatives and trustees. Any “interested person” may petition for revocation of probate. F.S. §733.109. Note also that F.S. §733.109(1) specifically expands the class of possible interested persons to disinherited beneficiaries of prior wills. The prudent approach is to consider all heirs at law as interested persons in the estate. The class of persons potentially falling within the class of a person’s heirs may also include a child that was raised by the decedent but never legally adopted under the doctrine of “virtual adoption.” See Williams v. Dorrell, 714 So.2d 574 (Fla. 3d DCA 1998).
Standing may also be the product of contractual rights if the claimant alleges the decedent breached an agreement to make a will validly created under F.S. 732.701(1). This claim is technically not an attack against the decedent’s will, but rather one for breach of contract that would have to be prosecuted like any other creditor’s claim under Part VII of Chapter 733.
It is also important to note that certain potential probate litigants can be essentially “bought out” if they receive their specified share of the estate. At that point they lose any standing to challenge any other aspect of the probate administration process. For example, in Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. 5th DCA 2005), the Fifth DCA held that the trial court was wrong when it ruled that the party seeking to remove the personal representative lacked standing because she did not fall within the definition of an “interested person” under F.S. §731.201(21). The estate had argued that because the petitioner was only entitled to a specific devise of $5,000 and there were sufficient estate funds to pay this specific devise, she was not an “interested person” and therefore under Fla. Prob. Rule 5.440(a) she lacked standing. The Fifth DCA held that the estate would have been correct . . . if the devise had already been paid. Because the devise had not been paid, the petitioner continued to have standing (oops!).