Contesting a Will in Florida

Valid Grounds for Contesting a Will in Florida

A Florida will contest has to rest on a recognized legal ground. The foundational statute is Fla. Stat. §732.5165:

“A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons.”

Two things follow from that sentence. First, these are the grounds. Second — and this is often overlooked — a will contest is not necessarily all or nothing. If only one provision was procured by undue influence, the court can void that provision and leave the rest of the will standing. Sometimes that is exactly the right result, and it is a much easier case to prove.

Florida Will Contest Grounds: What You Must Prove

Lack of Testamentary Capacity

Under Fla. Stat. §732.501, any person 18 or older who is of sound mind may make a will. “Sound mind” is a lower bar than most families expect. Florida does not require perfect memory, sharp health, or good judgment. The test is whether, at the moment of signing, the person generally understood:

• That they were signing a will and what a will does
• The general nature and extent of their property
• The natural objects of their bounty — who would ordinarily be expected to inherit
• How the will distributed their assets

Two consequences follow, and they cut in opposite directions.

A diagnosis is not a verdict. A person with a dementia or Alzheimer’s diagnosis can still make a valid Florida will. Bad decisions, eccentricity, physical frailty, and even significant memory loss do not by themselves establish incapacity.

Capacity is measured at one moment, not over a period. This is the lucid interval doctrine, and it decides most Florida capacity cases. Someone in cognitive decline may have periods of clarity, and a will signed during one of them can be valid even if the person was confused the week before and the week after. Conversely, a person who generally functions well may lack capacity on a specific day because of medication, delirium, infection, or acute illness.

Florida’s leading statement of both rules is American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998), which defines capacity as the ability to understand in a general way the nature and extent of the property, the testator’s relation to those who would naturally claim a benefit, and the practical effect of the will as executed — and defines a lucid moment as a period during which the testator actually returned to comprehension and possessed testamentary capacity, not merely a stretch free of obvious confusion.

Haynsworth also supplies a point that matters enormously in guardianship cases: where the testator had been adjudicated incompetent, the burden shifts to the proponent to prove the will was executed during a lucid interval. If a will was signed while a guardianship was in place, that is a materially stronger case than most families realize.

That is why records from the day of signing matter more than the overall diagnosis: the physician’s note from that week, the medication administration record, the facility’s daily charting, and the recollections of people who saw the person that day.

Insane Delusion

Distinct from general incapacity, and frequently overlooked. An insane delusion is a fixed false belief that has no basis in reason or evidence and that cannot be corrected by evidence. Where such a belief materially affected the terms of the will, the affected provisions can fail even though the testator otherwise had capacity.

Florida has recognized this ground for over a century. In Newman v. Smith, 77 Fla. 633, 82 So. 236 (1919), the Florida Supreme Court held that where an insane delusion regarding an object of the testator’s bounty causes the testator to make a will they would not otherwise have made, the will cannot stand. The test asks whether the belief was “persistently adhered to against all evidence and reason.” Hooper v. Stokes, 107 Fla. 607, 145 So. 855 (1933).

The modern authority is more useful. In Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011), the Fourth District defined an insane delusion as the spontaneous conception and acceptance as fact of something with no real existence, held against all evidence and reason — and reversed where the trial court failed to address the claim. In Miami Rescue Mission, Inc. v. Roberts, 943 So. 2d 274 (Fla. 3d DCA 2006), a will was invalidated where the testator had become falsely and immovably convinced that the caregiver who visited her daily had abandoned her.

The classic pattern is a testator who becomes irrationally convinced that a child stole from them, poisoned them, or is not biologically theirs, and disinherits that child on that basis. Ordinary family resentment, however unfair, is not an insane delusion. A belief no evidence can dislodge may be.

Undue Influence: the Most Powerful Ground in Florida

Undue influence means someone pressured or manipulated the testator into signing a will that does not reflect their own free choice. It is the most commonly pleaded ground in Florida will contests, and it is the ground where Florida law most favors the challenger — because of a burden-shifting rule that most states do not have.

How the Burden of Proof Works

Fla. Stat. §733.107(1) puts the initial burden on the person offering the will to establish due execution. Once that is done, the burden shifts to the contestant.

Then §733.107(2) does something unusual. It provides that in undue influence cases the presumption implements public policy against abuse of fiduciary and confidential relationships, and is therefore a presumption that shifts the burden of proof under Fla. Stat. §§90.301–90.304.

That distinction is the whole ballgame. In most states, this kind of presumption merely shifts the burden of producing evidence — the favored beneficiary offers some explanation, the presumption disappears, and the contestant is back to proving the case from scratch. In Florida, the burden of proof itself moves. The favored beneficiary must actually disprove undue influence, by the greater weight of the evidence. If the evidence ends up in equipoise, the contestant wins.

This is a change in Florida law that a great deal of older material still gets wrong. Before 2002, Florida followed In re Estate of Carpenter, under which the presumption shifted only the burden of coming forward with a reasonable explanation, leaving the ultimate burden of persuasion on the contestant. The Legislature changed that by adding §733.107(2), and the Fifth District has confirmed that the amendment supersedes Carpenter to the extent it prohibited shifting the burden of proof. See Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004); RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008). If you are reading a Florida will contest page that says the burden merely shifts to the beneficiary to “explain” their role, that page is describing law that changed more than twenty years ago.

In practical terms, a Florida will contest is often won at the moment the presumption attaches. Getting there is the work.

The Three Elements That Raise the Presumption

1. A confidential relationship between the testator and the beneficiary
2. The beneficiary is a substantial beneficiary under the will
3. The beneficiary was active in procuring the will

A confidential relationship is not limited to formal fiduciaries. It exists wherever one person places trust and confidence in another and the other has influence over them — caregivers, adult children handling finances, a new partner who took over the household, an advisor, a neighbor who drove the person to every appointment. It does not require a power of attorney, though one makes the point easily. Note that the ordinary marital relationship is generally not treated as a confidential relationship for this purpose without more.

The Carpenter Factors: Active Procurement

Active procurement is where these cases are won and lost, and Florida has a named test for it. In In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court identified the criteria courts consider:

1. Presence of the beneficiary at the execution of the will
2. Presence of the beneficiary on occasions when the testator expressed a desire to make a will
3. Recommendation by the beneficiary of the attorney who drew the will
4. Knowledge of the contents of the will by the beneficiary before execution
5. Giving instructions on the preparation of the will by the beneficiary to the drafting attorney
6. Securing of witnesses to the will by the beneficiary
7. Safekeeping of the will by the beneficiary after execution

Two things about this list, and both come from Carpenter itself. You do not need all seven. The Court said each case “must be decided with reference to its particular facts” and that “the criteria we have set out cannot be considered exclusive.” See also RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008). And the factors are a floor, not a ceiling — Florida courts routinely consider additional evidence of procurement, including isolation of the testator, control over their communications, money and medical care, and the beneficiary’s role in changing other estate documents in the same period.

One important caveat about Carpenter. It remains the source of the presumption and the seven factors, and Florida courts apply it constantly. But its holding on how far the burden shifts was superseded by §733.107(2) in 2002 — see the burden of proof discussion above. Cite it for the test, not for the burden.

Practical Warning Signs

In plain terms, these are the fact patterns that tend to produce provable undue influence cases:

• The person was isolated from family or longtime friends
• A caregiver, relative, or new advisor suddenly became the main beneficiary
• The will was changed shortly before death
• The beneficiary arranged the lawyer and the appointment
• The beneficiary was present during estate planning discussions
• The beneficiary controlled the phone, the mail, or visitor access
• The new will is radically different from a long-standing prior plan
• The person was dependent on the beneficiary for care, transportation, money, or communication
• The beneficiary kept the original will after signing

Florida courts take the caregiver fact pattern seriously. In Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005), where a will named the assisted living facility caring for the testator as the primary beneficiary, the Fifth District confirmed that the decedent’s children had standing as interested persons to contest, and held that whether undue influence tainted the revocation clause as well as the gifts was a question of fact that could not be resolved on summary judgment. The court did not find undue influence — it held the children were entitled to try to prove it. That distinction matters, and it is the realistic goal in most of these cases: get past summary judgment and into discovery, where the facts come out.

Fraud: Two Kinds, and the Difference Matters

Fraud in the execution means the testator was deceived about what they were signing — told a document was a power of attorney or a deed when it was in fact a will, or given a substituted signature page.

Fraud in the inducement means the testator knew they were signing a will but was deceived about facts that caused them to make it that way — told falsely that a child had stolen from them, that a relative had died, that a spouse had been unfaithful, or that a beneficiary had promised something they never promised.

The distinction matters because the evidence is different. Fraud in the execution is proved from the document, the circumstances of signing, and the witnesses. Fraud in the inducement is proved from communications — what was said to the testator, by whom, and whether it was false.

Duress or Coercion

Duress involves threats, force, or pressure severe enough to overcome the testator’s free choice. In elder cases this rarely looks like physical violence. It looks like a threat to withdraw care, to put the person in a nursing home, to stop visiting, to take away the grandchildren, or to leave them alone.

The line is between ordinary family pressure — which is not duress, however unpleasant — and pressure that overcame free will. Dependency is what usually makes the difference: a threat that would be trivial to an independent person can be overwhelming to someone who cannot leave the house without the person making it.

Mistake

A mistake supports a challenge where the will does not reflect what the testator legally intended because of a serious error — the wrong document was signed, the testator misunderstood what the document was, a critical intended provision was omitted, or a drafting or execution error changed the legal effect. Not every error invalidates a will. A scrivener’s typo usually does not. An error that changes who inherits can.

Improper Execution, and Why Florida Is Strict

Fla. Stat. §732.502 sets out what a valid Florida will requires:

• It must be in writing
• It must be signed at the end by the testator, or by another person at the testator’s direction and in their presence
• It must be signed in the presence of at least two attesting witnesses
• Those witnesses must sign in the presence of the testator and in the presence of each other

Florida requires strict compliance, not substantial compliance. Unlike some states, Florida will not excuse a defective execution because the testator’s intent was obvious. The Florida Supreme Court said so directly in Allen v. Dalk, 826 So. 2d 245 (Fla. 2002): a testator “must strictly comply with these statutory requirements in order to create a valid will.” In that case the testator had simply forgotten to sign, and the Court refused to impose a constructive trust to save the document, because doing so “would only serve to validate an invalid will.”

A will that was clearly meant to be a will, and that everyone agrees reflects what the person wanted, still fails if the formalities were not met. This is a harsh rule — and for a contestant, it is a favorable one, because it is the one ground that does not require proving anything about the testator’s state of mind.

The same strictness applies to the instruments that often sit alongside a will. In Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017), the Second District held that trust execution requirements are strictly construed and that reformation cannot cure a defect in the execution itself. And in Zaidman v. Zaidman, 305 So. 3d 330 (Fla. 3d DCA 2020), a later handwritten will executed before only one witness was invalid under Florida law — and therefore could not revoke the valid earlier Florida will.

Common execution defects:

• The testator did not sign at the end of the document
• There were fewer than two witnesses
• The witnesses did not sign in the required presence — the “we each signed later, separately” problem
• A handwritten (holographic) will with no witnesses. Florida does not recognize holographic wills, even a will valid where it was made, unless it was executed with the formalities Florida requires
• An oral (nuncupative) will — invalid in Florida in all cases
• An out-of-state or online form completed without proper witnessing

Wills Signed in Another State

A frequent question, and the answer has a trap in it. Under §732.502(2), a will executed by a nonresident of Florida is generally valid in Florida if it was validly executed under the law of the place where it was signed — except a holographic will. So a handwritten, unwitnessed will that is perfectly valid in a state that permits them is still invalid in Florida. If a Florida estate is being administered on a handwritten out-of-state will, that is worth examining closely.

The Self-Proving Affidavit: the Biggest Practical Obstacle

Most Florida wills are signed with a self-proving affidavit under Fla. Stat. §732.503, in which the testator and witnesses swear before a notary that the formalities were observed. Under §733.201, a self-proved will may be admitted to probate without further proof of execution.

This is why most execution challenges fail. But it is worth being precise about what the affidavit does and does not do. It satisfies the proponent’s initial burden under §733.107(1) of establishing prima facie due execution, and it lets the will be admitted without live testimony from the attesting witnesses. It does not foreclose a challenge. Once the will is self-proved, the contestant must come forward with evidence of an actual defect — testimony from the witnesses or the notary contradicting the affidavit, forensic examination, or proof that the notarization did not occur as stated.

It is not impossible. It is not easy. Anyone telling you an execution challenge is the “simple” route has not looked at the affidavit.

Forgery

A forged will in Florida can be challenged on the ground that the signature is not the testator’s, or that pages were altered or substituted after signing. Proving a forged will is a documentary case, not an argument about the testator’s state of mind. Indicators worth examining:

• A signature that does not match known exemplars
• Missing, renumbered, or inconsistently formatted pages
• Different fonts, margins, spacing, or paper between pages
• Witness signatures that look irregular, or witnesses nobody can identify or locate
• A will that surfaces only after death, from the person who benefits most
• Terms inconsistent with every prior version of the estate plan

Forgery cases usually turn on a forensic document examiner, and on obtaining genuine signature exemplars from the right time period. They also frequently involve the notary and the witnesses, who can be deposed.

Revocation, and Which Will Controls

Sometimes the dispute is not whether a will is valid but which document governs. A Florida will can be revoked by a subsequent writing under Fla. Stat. §732.505, or by a physical act — burning, tearing, cancelling, defacing or destroying it with intent to revoke — under Fla. Stat. §732.506.

The Revival Trap Most Pages Get Wrong

People assume that if a later will is knocked out, the earlier will automatically comes back. That is not the rule in Florida, and the distinction is important.

Fla. Stat. §732.508(1) provides: “The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will.” Florida has no automatic revival. A revoked will comes back only by re-execution or republication.

Here is how that plays out in a contest:

• If the later will is void from the start — never validly executed, or wholly procured by undue influence — then its revocation clause never took legal effect either. The prior will was never revoked, and it can be admitted.
• If the later will was validly executed and only part of it falls under §732.5165, the revocation clause can survive. In that case the earlier will does not come back, and the property may pass under the surviving portions of the later will or by intestacy.
• If the testator revoked a will by physical act and no valid will remains, the estate passes by intestacy under §§732.101–732.111, regardless of what an older document says.

This is why “get the last will thrown out” is not a strategy by itself. The question that matters is what happens next, and the answer is sometimes worse for the contestant than the will they are attacking. We work that out before filing, not after.

Lost or Destroyed Wills

If the original will cannot be found, Fla. Stat. §733.207 allows a lost or destroyed will to be established, but the proof requirements are demanding — the specific content must be proved, generally including testimony of a disinterested witness.

And where the original was last known to be in the testator’s possession and cannot be located, Florida applies a presumption that the testator destroyed it with intent to revoke. See Walton v. Estate of Walton, 601 So. 2d 1266 (Fla. 3d DCA 1992). That presumption can be overcome only by competent and substantial evidence — and in weighing it, courts may consider whether people with adverse interests had both the opportunity and the motive to make the original disappear. If a will vanished while in the custody of the person who benefits from its absence, that is worth pressing.

Electronic Wills

Florida has recognized electronic wills since January 1, 2020 under Fla. Stat. §§732.521–732.525, including remote online notarization. Electronic wills create additional grounds for challenge that paper wills do not have: whether a qualified custodian maintained the document as required, whether the audio-video requirements were met, whether the electronic record was altered, and — importantly for elder cases — whether the statutory vulnerable adult protections in the remote notarization statute were satisfied. If the will in your case was signed remotely, that entire compliance chain is worth examining.