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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 is 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 Florida will contest attorney.

Grounds for a Florida Will Contest

A Florida will may be contested for any one of (or combination of) the following reasons:

  • The will was not properly executed
  • The testator lacked the capacity to create a valid will
  • The will had been revoked or revised
  • The testator was subjected to undue influence
  • The testator created and/or executed the will under fraud or duress

While questions of execution may be fairly straightforward, proving lack of capacity, undue influence, fraud or duress is often complicated.

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Frequently Asked Questions (FAQs) about Florida Will Contests

How much time do you have to contest a will in Florida?

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.

Can you challenge a will after probate?

In Florida, you can contest a will that is in probate, but cannot contest a will after the court has discharged the estate. Where notice of administration is properly served, this rarely becomes an issue, as the short deadlines to initiate a will contest will typically expire long before an estate is settled.

Do I have a legal right to see my parents’ will?

During your parents’ lifetime, you have no rights with regard to their will. A will has no legal effect until the testator passes away, and it is entirely up to each individual whether to share the terms of the will with family members and other beneficiaries during his or her lifetime.

Once the testator passes away, the will is submitted to probate and becomes a matter of public record. At that point, the executor of the will is required to serve notice on beneficiaries and certain other interested parties.

Can you put a “No Contest” clause in a Florida will?

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, however, 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.

What are the requirements for a will to be valid?

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. In addition:

  • 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

Can I contest a will because it wasn’t properly executed?

A Florida will may be deemed invalid because it wasn’t properly executed. 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.

Can a properly executed will be contested?

Even if a will is perfect in form and has been properly signed and witnessed, it may be subject to challenge for other reasons. The testator may have been mentally incapable of executing a valid will at the time the document was signed, for example, or may have been tricked or pressured into signing the document.

Can I contest a “Self-Proving” will?

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. In addition, 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.

What is undue influence?

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
  • Was present when the testator discussed wanting to make a will
  • Recommended an attorney to draft the will
  • Was aware of the contents of the will before the will was executed
  • Provided instructions on drafting the will directly to the attorney
  • Was actively involved in securing witnesses to the will
  • 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.

When can a will be contested on the basis of fraud?

There are two types of fraud that may form the basis for a will contest: fraudulent inducement and fraud in execution.

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 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.

What does it mean to execute a will under duress?

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.

What does it mean for the testator to be incapacitated?

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.

Can the executor of a will take everything?

The executor of a will is legally bound to dispose of assets as the law requires and the will dictates. That means paying taxes, debts of the estate, and costs of administration, and then distributing the remainder of the estate to the designated beneficiaries. Occasionally, an executor may decide not to play by the rules, or may simply not be competent to manage the estate as required.

Florida law protects beneficiaries from executor misconduct in a variety of ways, from reporting requirements to a process for removal of an executor who is not fulfilling his or her responsibilities. A local estate planning attorney can help assess the situation and determine the best approach under your specific circumstances.

Does a will override a trust?

Although wills and trusts are both tools people can use to pass property after death, they are entirely separate and one does not supersede the other. A will dictates how property belonging to the deceased will be distributed after his or her death. However, property that has been placed in trust is the property of the trust, not of the deceased.

A will and a trust may be used in combination. However, property that has been transferred into the trust and not transferred back out does not become part of the estate, and will be distributed according to the terms of the trust. Similarly, property that has not been transferred to the trust will pass through the deceased’s estate, whether under the terms of a will or intestate succession.

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.

What about Spousal Elective Share?

Spousal elective share is a legal term relating to inheritance and is the percentage of an estate a surviving spouse may claim, regardless of the terms of the deceased’s will. The elective share protects a surviving spouse in the event that the deceased attempted to disinherit him or her, or left the surviving spouse only a small bequest. The elective share also provides a safety net for the surviving spouse if there is an error in the will, or the deceased failed to update the will to provide for the surviving spouse.

This helps to ensure that a spouse who has been a partner in the marriage is not left with nothing, or relatively little, when the other spouse passes away.

Calculating the elective share can be complicated, and if the deceased spouse has left some assets to the surviving spouse, it isn’t always clear whether it would be beneficial to take the elective share. A conversation with an experienced estate lawyer can help the surviving spouse decide how to proceed, and others named in the will understand how an election against the will could impact their interests.

Frequently Asked Questions about Elective Share

A: Every state calculates the spouse’s elective share a bit differently. In Florida, the surviving spouse is entitled to 30% of the “elective estate.” However, determining exactly what is and is not included in the elective estate and the value of those assets can be complicated.

For example, homestead property is included in the elective estate. But, how that property is valued for purposes of calculating the surviving spouse’s share of the estate depends on the legal interest the spouse receives and other factors. And, property may be counted toward the surviving spouse’s elective share even if that property is not part of the deceased’s estate.

A local estate attorney who is experienced in handling elective share matters can be the best source of information about what is and is not included in the elective estate and how value will be determined.

A: In Florida, a surviving spouse cannot be effectively disinherited. If the decedent does not leave behind a will or other provision for disposition of assets after his or her death, the Florida law of intestate succession directs all or part of the estate to the surviving spouse.

If the decedent has a will that leaves the spouse out, actively attempts to disinherit the spouse, or simply leaves the spouse less than the elective share under Florida law, the surviving spouse can simply opt for his or her elective share over the terms of the will.

A: In short, no. In fact, choosing the elective share is also known as “electing against the will.” In simple terms, this gives the surviving spouse the opportunity to reject the terms of the deceased spouse’s will and instead take the share provided by Florida law.

A: An unmarried partner can inherit if the deceased leaves behind a will, trust, or other vehicle that names the partner as a beneficiary. However, an unmarried partner is not entitled to inherit through intestate succession when there is no will, and will not be entitled to an elective share.

Further, if the deceased partner was legally married to someone else at the time of his or her death, the surviving spouse’s elective share will take precedence over the terms of the will. Under those circumstances, the unmarried partner may receive less than the deceased intended, or even nothing.

A: The elective share is just one factor in determining how much the surviving spouse will inherit in Florida. For example, if there is no provision for disposition of the deceased’s assets, the surviving spouse will receive either the entire estate or half of the estate—more than he or she would receive through the elective share.

Alternatively, the deceased spouse may have bequeathed the surviving spouse the full estate, or some portion of the estate that is larger than the elective share.

If the surviving spouse chooses the elective share, he or she will receive 30%, though calculation of that share is not as straightforward and clear as the percentage makes it sound

It is also important to note that the surviving spouse—like any beneficiary—receives bequests from the estate based on the value of the estate remaining after debts of the estate, taxes, and costs of administration have been paid. Thus, 30% or 50% of the estate won’t be equal to 30% or 50% of the deceased spouse’s property. And, if the deceased left the surviving spouse a specific bequest, such as $250,000 rather than a share of the estate, the spouse will receive the full amount only if it remains available after expenses of the estate are paid.

A: The state of Florida does not impose either an estate tax or an inheritance tax. That means that the estate itself is not taxed, and beneficiaries are not taxed on the property they receive through intestate succession or administration of a will. Florida residents who inherit estates may be subject to federal taxes, but this only applies to estates valued at more than $11.2 million (as of 2018)

A: The surviving spouse must file his or her election within six months of being served with Letters of Administration or two years after the date of death—whichever comes first. It is possible to obtain an extension to claim the elective share, but there’s a deadline for that, too, so the sooner you speak with an experienced estate lawyer and gather the information you need to move forward, the better.

Consult an Experienced Florida 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. Give yourself that advantage today by scheduling a consultation with attorney Thomas Upchurch.