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Contesting a Florida will

On Behalf of | Sep 2, 2021 | Probate |

Most Floridians think that once a will is signed by the maker of the will (the “testator”), its provisions are carved in stone and cannot be changed. Fortunately, Florida statutes provide clearly stated reasons a person can challenge the validity of a will or any of its provisions. Any such challenge is usually called a “will contest.”

The basics of a Florida will contest

A will contest is essentially a lawsuit begun by a person who is a direct heir of the testator who believes that the will is invalid. A will contest cannot be started until after the testator’s death. The lawsuit must be started in the county where the will was filed.

Grounds for declaring a will invalid: Failure to follow formalities

In order to be valid and enforceable, a Florida will must be signed by the testator and by two witnesses. A will contest must be commenced within 20 days of the receipt of the “Formal Notice of Administration.” If the will was not signed by the testator, or if the testator’s signature was forged, the will is invalid and none of its provisions will be enforced.

Grounds for declaring a will invalid: Lack of mental capacity

A valid will must be the free act of the testator. If the testator can be shown to suffer from a disease such as dementia or Alzheimer’s which impairs the testator’s capacity to think or reason rationally, the will is not valid. The burden of proving incapacity rests on the person mounting the challenge. Short of a written opinion of a medical professional, the most common method of proving incapacity is through testimony from friends and relatives as to irrational behavior of the testator before the will was signed.

Grounds for declaring a will invalid: Undue influence

A will can be successfully challenged if the person mounting the challenge can prove that one or more of the heirs named in the will made an undue effort to influence the testator to alter a bequest in favor of certain heirs. Medical professionals who provide care for the testator in the last few months of life are often charged with attempting to exert undue influence on the testator.

Anyone who is concerned about the validity of a will executed by a close friend or family member may wish to consult an attorney experienced in probate litigation for an evaluation of the evidence and an estimate of the likelihood of having a court declare the will (or a specific bequest) to be invalid.

 

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