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Contesting a Will in Florida

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What Are The Grounds For Contesting a Will in Florida?

A will can be challenged on a number of grounds in Florida:

  • Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.  Critically, for a will to be validly executed, the decedent must sign or acknowledge the will in the presence of the two attesting witnesses, and the two attesting witnesses must sign the will in the presence of each other.  Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005).  Often a quick deposition of the persons present at the execution of the will can establish that the requisite formalities were, or were not followed.
  • Lack of Capacity. Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.  The Florida Supreme Court has stated in In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953):

The making of a will does not depend upon a sound body but upon a sound mind.  By “sound mind” is meant the ability of the testator ‘to mentally understand in a general way the nature and extend of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of practical effect of the will as executed.

  • 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, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker. The Florida Supreme Court case Estate of Carpenter is the seminal undue influence case for Florida will contest litigation.  The Carpenter case lists a set of non-exclusive factors to determine whether a beneficiary has actively procured a will:
      • presence of the beneficiary at the execution of the will;
      • presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
      • recommendation by the beneficiary of an attorney to draw the will;
      • knowledge of the contents of the will by the beneficiary prior to execution;
      • giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
      • securing of witnesses to the will by the beneficiary; and,
      • safekeeping of the will by the beneficiary subsequent to execution.
  • Insane Delusion. Insane delusion occurs when the testator, against all evidence to the contrary, believes something that is not true, and creates or changes an estate planning document (will or trust) based on the insane delusion. For example, the testator could believe that she has been abandoned by a child and disinherits the child. In reality, the child visits his mother every day. The will could be set aside as an insane delusion.
  • Fraud. Estate fraud occurs when a beneficiary of a will causes the testator to make or change a will based on misrepresentations. For example, an unscrupulous child could tell a parent lies about a sibling to cause that sibling to be disinherited. Examples of such fraud could be that the sibling has been convicted of a crime, has engaged in illegal or immoral acts, or has said derogatory things about the testator. If the will has been prepared based on the fraud, the will can be set aside in a successful will contest.

How Long Do I Have To Contest A Will In Florida?

20 days, 90 days, or 4 years.  The time for contesting a will in Florida is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative.  However, if you receive Formal notice of the probate proceeding before the will is admitted to probate, your deadline will be 20 days after service of notice.   Therefore, prompt action is required to bring your lost inheritance back to life.

If there has been no probate proceeding or notice received, you generally have four years from death to contest a will in Florida.  See the Florida Probate Deadlines and Timelines chart for a quick and handy guide of probate deadlines.

Can Other Documents Be Challenged On The Same Grounds As A Will?

Yes.  Not just a will can be challenged under these grounds. A trust can be challenged under the same grounds, as well as a real estate deed or a beneficiary designation on a financial account.

There are many situations where the undue influencer will trick or persuade a weakened person to sign over valuable real estate, a bank account, or other property directly to the influencer, in the hope that they will have left the scene before the wrongdoing can be discovered. Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass.

If the wrongdoing is discovered prior to the victim’s passing, a common way for a loved one to start to clean up the situation will be to create a guardianship, which will allow the guardian to use the court’s jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding.

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