Bringing a Florida will contest can seem daunting, and is something most people have never done before. Here are your top Florida will contest questions answered.
1. When can a will be challenged?
A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the creation of the will can be gathered and preserved for subsequent litigation. After death, the Personal Representative will issue a Notice of Administration, which starts a 90-day period for challenging a will or the appointment of the Personal Representative. Sometimes, an interested person in the estate will serve a petition for administration on all other interested persons, accompanied by a document called “Formal Notice.” If a formal notice has been received, the time for starting the will contest is only 20 days from receipt of the formal notice.
2. Can a will be challenged if it was not prepared properly?
Yes. 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. A will can also be thrown out if it can be proven to be a forgery or to have been tampered with. Florida courts have declared wills to be invalid that were not witnessed properly, including a situation where the witness was in an adjoining room when the will was signed and not in the immediate presence of the testator.
3. Can a will be challenged if the maker was suffering from dementia or Alzheimer’s?
Yes. 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 testator around the time the will was executed.
4. Can a will be challenged if another person encouraged the preparation of a will?
Yes. 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. Please read Estate of Carpenter, which is the most important undue influence case in Florida.
5. Can a will that leaves everything to a second spouse instead of children from a first marriage be challenged?
Yes. While Florida courts are reluctant to overturn bequests to a surviving spouse under an undue influence claim, given the importance of marriage in our society, an egregious set of facts could warrant striking of a bequest to a surviving spouse. However, the surviving spouse will be entitled to the elective share and other spousal entitlements, absent a valid marital agreement to the contrary.
6. Can I get a jury trial in a will contest case?
Possibly. Almost all Florida will contests are heard by the probate division of the circuit court, where jury trials are not permitted and it goes without question that the judge will decide your case. In some situations, if a remedy in probate court is not available, a claim for tortious interference with inheritance expectancy can be filed, which does entitle the challenger to a jury trial.
7. I want to challenge a will, but the will says that anyone who challenges the will is automatically entitled to nothing. I am already entitled to a small bequest under the will and don’t want to risk losing it. What should I do?
One of the most common Florida will contest questions is about no contest clauses in wills, which we have written about here. Unlike many states, Florida does not recognize “no contest” clauses in wills or trusts. In any litigation in Florida over a will or trust, such a clause will be ignored.