Thousands of probate cases are opened each year in Florida. In a majority of these cases, the decedent’s property is eventually distributed by will. In other cases, the decedent left no will and the estate is distributed according to the Florida rules on intestate succession. In some cases, however, the will is called into dispute, resulting in a will contest.
Grounds for Contesting a Will
Florida law provides several possible pathways by which a will might be disputed, including:
- Lack of a valid writing and/or signature. The will must be in writing and signed by the testator (the person making the will and whose property will be distributed).
- Lack of witnesses and/or witness signatures .Florida requires two witnesses to the signing of the will by the testator, and both witnesses must sign the will.
- At least one witness cannot be located, and the will has not been notarized. A will is “self-proving” if the signatures of the testator and both witnesses have been notarized. If they have not been, the witnesses will have to be located to confirm their signature; otherwise the will fails for lack of confirmed witnesses.
- Undue influence: Someone exercised an inappropriate influence over the testator, in a manner that undermined the testator’s free will or encouraged the testator to act impulsively.
- Lack of testamentary capacity. Testamentary capacity is similar to mental capacity — did the testator understand what she was doing when she signed the will? Did she understand the consequences? This is a particularly common claim, because many elderly people make out wills while suffering from dementia.
- Duress: The testator was coerced, either physically or psychologically, into signing the will.
- Misrepresentation: Perhaps the testator was given a large pile of documents to sign, for example, and she signed the will without knowing what it was. Alternatively, maybe she “cut off” one of her descendents in response to a deliberate lie perpetrated by a rival beneficiary. The possibilities are endless.
A will contest is not a separate proceeding — it is part of regular probate proceedings. Anyone who could be affected by its outcome (an “interested person”) is entitled to challenge a will, even if they are ot mentioned in the will, and any other interested person is entitled to defend the will by opposing the challenge.
The general deadline for challenging a will is 90 days after the Notice of Administration is issued; in some cases the deadline can be as short as 20 days. If the challenge is submitted in time, an adversarial hearing will be held and the probate court will make the decision.
Make It Happen With Lorenzo Law
If you are involved in a will contest, if you anticipate having to defend a will against a claimant, or if you intend to file a will contest yourself, contact estate attorney Jose Lorenzo by calling (305) 999-5411, completing our online contact form or visiting one of our offices in Coral Gables and Ft. Lauderdale. We handle cases throughout the entire state of Florida.