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Written by Thomas Upchurch
There are more than 110,000 probate dispositions each year in Florida. The majority of these include a will that guides the court in how the deceased person wanted his or her assets distributed.
In some instances, such as when a testator was vulnerable to being improperly influenced, a will may not accurately reflect the wishes of the deceased. When this happens, understanding how to contest a will may prevent someone from inappropriately profiting on another’s will.
When there is a death in Florida, there are two ways that the deceased person’s belongings get distributed. If the person passed away without a will, the court follows intestate distribution laws.
If the person has a will, the court will do its best to follow the directions as set forth in the will.
If you want to contest a will, you need to petition the court. To do this, you must file a Petition for the Revocation of Probate.
The estate will continue to go through the distribution process by the administrator or personal representative. The only property that won’t get distributed is the property that could possibly go to someone else as a result of the contest.
If you are the one contesting the will, you are responsible for providing evidence of your arguments. You will need to show proof that the will should be revoked.
You can contest a will as long as you do so prior to the completion of the probate process. The probate process is where the will is submitted to the court, the court distributes the deceased’s belongings, any debts are taken care of, and the estate is closed out.
If no one has submitted a will to the probate court, you can contest the will no matter how much time has passed. If there was a will submitted, your deadline to contest will be determined based on whether or not you’ve received notification.The deadline is three months if you’ve received notice. But if you didn’t get notice, you can continue to contest at any time until probate completion.
Once the court has finished and the estate is discharged, you can no longer contest the will.
If there was any fraud that prevented you from being able to contest then you can contest after the estate is discharged. This would apply when someone intentionally fails to notify a family member of the deceased’s death.
You may know of a will that should be contested due to incapacity or undue influence. You have to wait until the person passes before you can contest the will. Florida statutes prevent you from contesting a will while the person is still alive.
You can contest a will if you can show that the will doesn’t represent the deceased’s wishes. You can also contest it if the will doesn’t comply with Florida’s laws to make it valid.
For a will to be valid will it must follow certain procedures when it is executed. The deceased must have signed it in the presence of two witnesses. There also must be a notary’s signature authenticating all three signatures.
Fraud, undue influence, or incapacity are two more grounds for contesting a will. Fraud occurs when the deceased didn’t know they were signing a will. He or she may have willingly signed the document, but not understand that the document is a will.. This is different from undue influence, which is when the deceased knew he was were signing a will, but someone else pressured him to do so.
Finally, incapacity is when the person didn’t have the mental capacity to understand what was happening.
Sometimes, insane delusion gets wrapped into incapacity. This is when the deceased believes something to be true even though there is concrete evidence to the contrary. An example of this would be an elderly person living in a nursing home. Her child signs in and visits daily. Yet the elderly person disinherits her child under the belief that the child had abandoned her and never visited.
If you argue your petition effectively, and the evidence supports your argument, the court could find all or a portion of the will invalid. If the court finds undue influence, then it may be just one provision that is invalid.
However, if the court finds evidence of mental incapacity, then the entire will could be invalid.
When the court finds all or a portion of the will invalid, then the property pertaining to the invalid provisions will pass according to intestacy laws. This means that it could end up going to someone other than who the will states and yourself.
Some states allow people to put a no contest clause in their will. Florida, however, is not one of those states.
In states where the clause is valid, it will state that if someone challenges a will, he or she will be disinherited. Without this law, it is easier to contest a will in Florida.
When people make wills, it is their way of stating what they hope will happen with their property after their passing. The court will then use the will to distribute the property.
You need to know how to contest a will if you find that some of the provisions or the entire will is a result of fraud, undue influence, or capacity. These are provisions that the deceased person didn’t actually want.
If the court agrees with your evidence, then the will’s invalid portions are tossed out. Since we can’t go ask what the deceased person wants, the property passes through intestate.
Avoid someone contesting your will by avoiding these pitfalls of DIY wills. If you are considering contesting a will, or are preparing a will for yourself, contact us for a consultation. We can help ensure your rights are protected.