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Contesting a Will in Florida

June 13

How to Contest a Will in Florida

Written by Thomas Upchurch

Thousands of probate cases are opened each month across the state of Florida. While some of these cases involve decedents who died with no provision for their estates and are governed by the law of intestate succession, many are commenced with the filing of a will.

In theory—and usually in practice—the will filed with the probate court helps ensure that the testator’s wishes are carried out. But, sometimes there are questions about the validity of the will or whether it accurately reflects the wishes of the testator. When the personal representative, a beneficiary, or another interested party believes that the will is technically invalid or does not accurately reflect the deceased’s intentions, he or she may contest the will.

What is a Will Contest?

A will contest is a type of estate litigation in which one or more interested parties challenge the validity of a will or some provision thereof.

Grounds for Contesting a Will

Will contests involving failures of form are typically the most straightforward. For example, a Florida will must be signed by the testator, and by two witnesses who signed in the presence of both the testator and the other witness. A will that has not been properly witnessed may be deemed invalid purely because the technical requirements were not met.

Other types of will contest are more complicated, and will typically require more substantive evidence. These include:

  • A claim that the testator was subjected to undue influence
  • A claim that the testator was not of sound mind when the will was executed, also known as “incapacity”
  • A claim that the testator was the victim of fraud, or was coerced to sign the will

Constructing an effective challenge to a will based on undue influence, fraud, or duress requires a thorough understanding of estate law and often access to experts such as medical professionals.

Procedure for Contesting a Will

A will contest isn’t a separate lawsuit, but an adversary proceeding within the probate case. That means that the party wishing to contest the will files a petition with the probate court in the existing case, asking that the will be deemed invalid in whole or part or that a will executed as a result of undue influence, fraud or duress be revoked by the court.

As with any other legal proceeding, the petitioning party will be expected to follow both the procedural rules associated with a probate court proceeding and substantive law. Therefore, it is generally in the best interest of a beneficiary or other interested party who wishes to contest a will to consult with an experienced estate litigation attorney before taking any action.

However, quick action is essential. The standard timeline for filing a will contest is 90 days after the Notice of Administration is provided. But, if a formal notice is provided in advance of filing of the will, that time is cut to just 20 days.

While there are exceptions to these tight timelines, such as when no will has been filed or when the probate action has been concealed from an interested party, most beneficiaries and others will be precluded from filing a will contest if the deadline passes.

Possible Outcomes

When a will is contested, the will may be:

  • Deemed valid, and probate will continue according to the terms of the will
  • Deemed invalid, in which case the last valid will is reinstated—if there is no prior valid will, the estate will be distributed as if the testator had died without a will
  • Deemed invalid or unenforceable in part, in which case the remaining provisions will be carried out

Whether or not parts of a will may withstand challenge while others fail depends in large part on the grounds for the challenge. For example, a will that was not properly is technically invalid, and so no part of the document is enforceable. Similarly, if the testator lacked the capacity to execute a will, then the entire document will be thrown out.

On the other hand, in an undue influence, fraud, or coercion situation, it may be that only one provision is found to have resulted from the pressure or deception. In that case, the remaining provisions may stand.

Risks Associated with a Will Contest

One concern many people considering a will contest have is that they will lose everything if they petition to have the will determined invalid or revoked and the petition fails. While television patriarchs often or include provisions that leave an heir who contests the will entirely out in the cold and some states do allow for no contest provisions, Florida law does not. A beneficiary who challenges a will and is unsuccessful remains entitled to whatever he or she was bequeathed under the will, even if the will says otherwise.

One other consideration is the cost of a will contest compared with the value of the estate. If the estate is small and the will contest contentious and of the type that requires expert testimony, it is possible that the contest will badly deplete the estate.

Consulting with an experienced Florida will contest attorney like Thomas Upchurch as soon as you know there is a problem is the best first step. Mr. Upchurch can provide the information and guidance you need to make informed decisions about your next steps, and to ensure that you don’t overlook deadlines or technical requirements that could limit or destroy your claim.