Will Contests in Florida
A Will Contest refers to a legal objection to the validity of a will, when two or more parties contend that the document does not accurately reflect the intent of the testator (individual who made the will). Will Contests typically arise before or during probate, a legal process that consists of the collection of a decedent’s assets to be distributed among creditors and beneficiaries.
The Elder Law attorneys at the Miller Elder Law Firm have broad experience and an in-depth knowledge of the required grounds for challenging a will, and are well-qualified to help you determine whether legal action is warranted. If you believe you have a valid probate litigation dispute, contact the Miller Elder Law Firm for a free initial consultation at our Gainesville Florida office by calling (352) 379-1900 or contact us online (millerelderlawfirm.com).
Challenging a Will
If you are a beneficiary of a will going through probate, and disagree on the distribution of the decedent’s assets or on how the testator’s Last Will has been interpreted, you may challenge a will. Even if you are not a beneficiary you may still contest if you are an heir at law, depending on the facts and circumstances of the case. Before contesting a will, however, it is imperative that you contact a competent Elder Law attorney familiar with the Florida probate code and rules, as there are strict deadlines for taking action. A potential claimant may only have ninety days to accumulate the proper supporting documentation and file a formal suit contesting the will. An Elder Law specialist and estate litigator is capable of determining if you have a valid case to contest a will.
Grounds to Contest a Will in Florida
A will may be challenged in its entirety, or only in part, but must be contested in a Florida probate proceeding on a number of grounds:
● Duress: Refers to any physical intimidation, threat, or harm upon a testator (individual who made the will) which causes the execution of the Will.
● Fraud: Under Florida law, a will is void if it is executed through fraud because it defeats the testator’s wishes through deceit. There are two types of fraud, including Fraud in the Execution and Fraud in the Inducement. Any of these two are constructed upon certain elements, such as the false representations of facts to the testator, knowledge by the perpetrator that the documents are fraudulent, and his or her intent that the representations be acted upon.
● Lack of Execution Formalities: A will may be contested on the grounds that its execution was not in accord and did not comply with the statutory formalities set forth in the Florida statutes, which mandate that a will should be validated as follows: it must be in writing, and it must be signed by the testator in the presence of two witnesses, who in turn must sign the will in the presence of each other and the testator.
● Lack of Testamentary Capacity: A will may not be challenged simply because an individual has a form of mental disability or discapacity. The contester must prove that the testator lacked capacity of understanding in what was intended at the time of signing the will, and yet had lucid intervals so as to engage in the process of preparing one. The burden of proof for lack of capacity must indicate that an individual did not understand any of the following: the extent of his property, the relationship of those who would become the beneficiaries, and the practical effect of a will.
● Undue Influence: Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her.
If you believe your loved one’s will was executed under any of these grounds, allow the Miller Elder Law Firm to help you by calling (352) 379-1900 or contact us online (millerelderlawfirm.com).