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Florida Will Contest Attorney

Helping Floridians Protect Their Rightful Assets

A will is intended to ensure that the creator’s assets are distributed according to his or her wishes, rather than passing according to the Florida law of intestate succession. However, the fact that a deceased person left behind a will doesn’t necessarily mean that document will dictate how property is distributed. A Florida will may be contested for several reasons.

Whether you are a named beneficiary who may be facing a will contest from another interested party or you believe that a loved one’s will in invalid, it is important to understand the grounds on which a will may be contested. It’s also important to be aware of the potential time and expense associated with a will contest, as estate litigation may diminish the estate, significantly reducing the assets available for distribution.

The information below is a general overview to help you understand when and how a will may be challenged. Your best source of information will be an experienced Daytona Beach will contest attorney.

What if the Will Contains a “No Contest” Provision?

To discourage heirs and beneficiaries from delaying administration and potentially draining the estate with family disputes, some testators include a “no contest” provision in their wills. These provisions dictate that anyone who initiates a will contest and loses will receive nothing—even if the terms of the original will left that person a significant bequest.

Florida law does not recognize no contest provisions. If such a provision is included in a Florida will, the probate court will simply disregard it. Thus, a beneficiary who steps forward to contest the will is not at risk of being disinherited by a no contest provision.

Grounds for a Florida Will Contest

A Florida will may be contested for any one of the following reasons, or for a combination of reasons.

The Will Was Not Properly Executed

In Florida, a person must be at least 18 years of age and of sound mind to execute a valid will. But those aren’t the only requirements, and some Florida wills fail because they weren’t executed as required by Florida law.

For example:

  • A Florida will must be in writing—an attempted will may fail if the testator used another form, such as verbal statements or a recording, to make his or her wishes known
  • A Florida will must be signed—even a written will may fail unless it was signed by the testator (or, under limited circumstances, by someone acting at his or her direction)
  • A Florida will must be signed by two qualified witnesses—each witness must sign the will in the presence of the other witness and the testator

Some failures in form are straightforward: for example, the will may be signed by only one witness, or may not be signed by witnesses at all. Often, however, the alleged flaw is less clear. For instance, a family member may claim that the testator’s signature was forged, or that the witnesses signed at separate times and places rather than in the presence of one another.

If a loved one has died and you believe that the will was not properly executed, it is in your best interest to contact an estate litigation attorney as soon as possible. A lawyer who is experienced in handling will contests can advise you as to the likelihood of a successful challenge, and can explain the process and the resources required to contest the will. Similarly, if you are the executor of or a beneficiary to a will that is being contested, contact an attorney as soon as possible to learn more about how you can defend the will and protect your interests and those of other named beneficiaries.

What if the Will is “Self-Proving”?

You may have heard that some wills are “self-proving.” While Florida law does allow for self-proving wills, the term is a bit misleading. A self-proving will is simply a will that is accompanied by an affidavit from the witnesses stating under oath that they signed the will as witnesses, and that they did so in the presence of one another and the testator.

A self-proving will can save time and effort, because in a straightforward, uncontested probate administration the affidavit allows the personal representative to move forward without summoning one of the witnesses to establish that the will was properly and voluntarily executed. However, the affidavit—like any other testimony—can be challenged. And, some grounds for a will contest may not have been apparent to the witnesses.

So, while a self-proving will typically ease the burden of administration slightly, it does not render the will immune to contest.

Intent to Revoke

Ideally, revocation of a will occurs in writing. However, Florida law does allow a testator to revoke a will by physically destroying it. Such destruction may provide grounds to contest the will. However, when a will has been physically damaged or destroyed, it may be unclear whether the testator was responsible for the destruction, and whether that destruction was intended to revoke the will.

Incapacity of the Testator

A will may be properly executed and still deemed invalid. One of the most common will challenges involves a claim that the testator lacked the capacity to make a will. This often arises with regard to elderly testators or those who were already suffering a final illness when the will was created.

Capacity is determined on a case-by-case basis—the simple fact that the testator is of advanced age, is seriously ill, or even has been diagnosed with a condition that could potentially impact mental functioning won’t necessarily lead to a determination that the will is invalid. Rather, the court will look at the specific circumstances at the time the will was executed, including any medical condition, the impact of medications the testator may have been taking, and other factors.

Will contests based on incapacity typically rely on witness testimony, of both medical professionals and of those who had the opportunity to observe the testator at and near the time the will was created and signed.

The Testator’s Execution of the Will was Not Knowing and Voluntary

A testator must have the required mental capacity to create and execute a valid will. However, simply being competent to create a will doesn’t ensure that the document will withstand challenge. A will may also be contested on the grounds that the testator was subject to undue influence, was defrauded, or was subject to duress.

Will contests on these grounds are often complicated, because they require reconstructing and proving events that occurred during the testator’s lifetime. With the key witness—the testator himself of herself—no longer available to testify, it may be difficult to establish the events leading up to execution of the will.

Undue Influence by a Beneficiary

Most people are influenced to some degree by those close to them, so the simple fact that the deceased consulted a relative when drafting his or her will won’t necessarily support an undue influence claim. Similarly, the mere fact that one relative was the deceased’s primary caretaker during the time period when the will was drafted doesn’t necessarily mean that he or she was controlling or manipulating the testator’s decisions.

Florida law sets forth specific factors required to show undue influence in a will contest:

1. The alleged influencer must be a “substantial beneficiary” under the will

2. The alleged influencer must have occupied a “confidential relationship” with the deceased

3. The alleged influencer must have been active in procuring the will

Whether the person alleged to have influenced the testator is a substantial beneficiary is easily determined by the terms of the will. The existence of a confidential relationship must be established through evidence such as the duration of the relationship, the amount of time the testator and alleged influencer spent together, how frequently they were alone together, and the degree to which the testator relied on the alleged influencer for advice and other care and support.

The third element is often the most difficult to establish, since this type of activity often occurs in one-on-one conversations between an influencer and the testator. The Florida Supreme Court has set forth factors to be considered in determining whether the alleged influencer was active in procuring the will. These include:

  • Whether the beneficiary was present when the will was executed
  • Whether the beneficiary was present when the testator discussed wanting to make a will
  • Whether the beneficiary recommended an attorney to draft the will
  • Whether the beneficiary was aware of the contents of the will before the will was executed
  • Whether the beneficiary provided instructions on drafting the will directly to the attorney
  • Whether the beneficiary was actively involved in securing witnesses to the will
  • Whether the beneficiary took charge of safekeeping the will

While these factors play a role in the determination and may be sufficient to establish undue influence, they are not exclusive. Other evidence of undue influence may be introduced in addition to evidence regarding the factors listed.

Fraud or Duress

Undue influence is just one reason a court may determine that a testator did not knowingly and voluntarily execute a will. Fraud and duress are two others. Often, fraud and duress claims will overlap with undue influence claims, since a person attempting to influence the contents of another’s will may employ deception, threats, and other tactics to secure the testator’s cooperation.

Fraudulent Inducement

Fraudulent inducement occurs when someone employs fraud to influence the testator’s decisions about how to dispose of his or her estate. Fraud occurs when:

  • The person makes false representations of material fact to the testator
  • He or she knows that the representations are false
  • He or she intends that the testator will act on the false information
  • Injury occurs as a result of the deception

In the context of a will contest, the injury is typically that the testator makes a decision that he or she would not have made with accurate information, shifting assets away from anticipated beneficiaries.

Fraud in Execution

Fraud in the execution of a will is more straightforward than fraudulent inducement. The victim of fraudulent inducement knows what the will is and what it contains, but has made decisions based on falsehoods. When fraud is employed in the execution of a will, the testator may believe that he or she is signing something other than a will. Or, the testator may know that the document being executed is a will, but believe that it says something different than it does.

Duress

Will contests based on duress are relatively uncommon, both because the level of conduct that supports a duress claim is unusual and because it can be very difficult to establish that a testator acted under duress once he or she is deceased. Although there are exceptions, duress is most likely to occur when the testator is isolated with and dependent on a relative or other caregiver.

Some examples of duress include threats of physical harm if the testator does not execute the will and withholding of care, food, medicine and other necessities.

Timeline for a Florida Will Contest

Florida law provides a relatively narrow window in which to contest a will. There is no mechanism for challenging a will during the testator’s lifetime, even if there are clear signs of mental incapacity, undue influence, or other grounds.

However, once the testator passes away, the process can move quickly. The notice of administration issued by the personal representative of the estate starts a 90-day timeline for contesting the will or the appointment of the personal representative. If a “formal notice” is issued, the time frame is shortened to just 20 days.

Twenty days is a very short period of time in which to secure legal advice and move your challenge forward, so it is in your best interest to seek counsel as soon as you recognize that a will contest may be required.

Consult an Experienced Will Contest Attorney as Soon as Possible

The timeline for contesting a will is tight, but that’s not the only reason to act quickly to secure legal advice and representation. The period following the loss of a loved one is always stressful and conflict over the deceased’s will can strain family relationships and lead to unproductive and even counterproductive action on all sides. A knowledgeable legal advocate can help to keep the dispute focused where it counts, on the factors that will determine the outcome of a will contest.

At Upchurch Law, we have the experience and in-depth knowledge that our clients need to ensure their rights are fully protected. We work aggressively to ensure that our clients receive the inheritance that is rightfully theirs. If you need assistance with a Florida will contest, call us to schedule a consultation.

Daytona Beach-based Will Contest Attorney

Thomas Upchurch can consult with you about a Florida will contest. Call 386-320-6169 or contact us or e-mail tupchurch@upchurchlaw.com.