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Disputes over a will are common in stories, but today, they are relatively rare in court. Few studies exist, but it appears that only about 3% of wills in US probate courts are contested, and the rate of success for those contests is even lower.
Even so, probate proceedings are often emotionally charged, leading to challenges from family members. And strong grounds may exist to challenge a will: undue influence from a beneficiary; lack of capacity to make the will; an unlawful execution that makes the will void.
If you are considering—or facing—a challenge to a will in Florida probate court, you should understand what the court will require and what you need to prove.
Challenging a Will in Florida
The process begins when an interested person presents the will to the probate court with a Petition for Administration. A Notice of Administration must be sent to interested parties, including:
- The spouse of the decedent (deceased person)
- Any beneficiaries named in the will
- Beneficiaries and trustees in certain trusts, and
- Anyone entitled to exempt property (certain goods set aside for the decedent’s children)
See Fla. Stat. § 733.212.
Anyone who wishes to challenge the will or the petition must act quickly. Those who receive a Notice of Petition will have to file their own adversary petition within three to four months of the date of service at most, depending on their interest.
In some states, a testator (the writer of a will) can add a no-contest clause to the will, excluding anyone who challenges the will from taking any benefits under it. This is called an in terrorem clause, and it is not honored in Florida law. Anyone who has standing to challenge the will in Florida may do so without endangering their rights under it. See § 732.517.
Grounds for Contesting a Will
Anyone contesting a will can challenge the whole will or one part of it. However, they must have specific grounds to do so. These include:
Lack of Testamentary Capacity
A testator must be “of sound mind” to write a valid will in Florida. To have testamentary capacity, the testator must understand:
- the effect of making their will
- the “nature and extent” of their estate
- their relationships to “the natural objects of their bounty” (spouse, children, or nearest family members)
Testamentary capacity has to exist at the moment of the will’s execution, but only at that moment. Someone who has only periods of lucidity may have testamentary capacity to create a will at that time.
Undue Influence
Proving undue influence is complex, since it involves a personal relationship. However, it generally involves someone who became a “substantial beneficiary” of a testator’s estate through a confidential relationship—a caregiver, a relative, a professional. This beneficiary worked to “actively procure” the will in their own favor; they may have advised the testator, referred them to an attorney, or even written the clauses.
Anyone alleging undue influence must also show that the beneficiary worked to control the testator. Such persons often isolate ailing testators from their loved ones, lying about them or cutting off their attempts to communicate.
Duress or Coercion
If someone physically threatens a testator or their loved ones, any will the testator makes under that threat is void. This includes a threat of neglect, such as withholding food or medication.
Fraud
A will is invalid, in whole or in part, if it was based on fraud. For example, an unscrupulous son might attempt to convince his mother that their absent relatives had died, so that he would get a larger share in her will. If his mother relied on his misrepresentation in making her devises, the will would be void.
Mistake
When a will contains an honest mistake of fact or law that would affect the testator’s intent, a contestant can request that the court reform the will’s terms. See § 732.615. To take another example, a will might repeat the same relative’s name on two different devises of property, where it seems otherwise clear from context that two distinct people were meant.
Improper Execution of the Will
In Florida, the testator must sign their will; if they physically cannot, another person must do so in their presence and at their direction. At least two witnesses must observe when the testator signs the will or acknowledges a previous signing. These witnesses must sign the will in the presence of the testator and of each other. See § 732.502. If there is any question about the execution or the originality of the will, a challenger can assert that it is void.
The original will must be deposited with the clerk of the court, unless another court has possession of it; then, an authenticated copy must appear. See §§ 732.901, 733.206. Wills made under military law are valid, as are wills made under the laws of other states by nonresidents (with some exceptions). Florida law also sets out standards for electronic wills.
Prior Revocation of the Will
Once a will or a codicil has been revoked, it is void. A revoked will is not “revived” if the testator later revokes a replacement will. See § 732.580. A testator can revoke a will through a formally executed statement or simply by destroying it. They can also revoke it by creating a new will inconsistent with the old one. See §§ 732.505–506.
Probate Litigation in Orlando
None of this is easy—not for you, and not for your relationships. Our Orange County probate litigation attorneys can help guide you to a solution and defend your rights in court. Contact us today at 407-449-8958 to schedule your first appointment.
