What happens when a loved one (parent, sibling, spouse) dies, and after the Will (“Last Will and Testament”) is probated, you are stunned with disappointment over your share of the estate? Is there anything you can do about it?
In Florida, if the probate process has not been completed, you may contest the Will. (Note: each state has its own rules on Will contests governing who may bring a contest, when, and on what grounds. So if you are considering a Will contest, check the laws of your state.)
It Starts with Legal Standing
Will contests are adversary proceedings that are brought within the context of the probate of a decedent’s estate. A Will contest challenges the validity of the Will on a specific legal ground. As we will discuss later, there are a limited number of legal grounds for contesting a Will.
But before we get to the grounds upon which you can contest a Will, it is important to understand exactly who can contest a Will. Not just anyone can contest a Will. In order to do so, you must have “legal standing” (i.e., a legal right or interest in the proceeding) to file a Will contest.
In Florida, anyone who is considered an “interested person” may file a Will contest. The term is pretty broad, but generally it means that beneficiaries, creditors, and heirs can file a Will contest.
Three Grounds for Contesting a Will in Florida
Merely being disappointed in the Will (as in you were hoping you would get a lot more, or would get something different), will not be sufficient grounds for bringing a Will contest.
There are a number of factors to consider when deciding whether or not to file a Will contest. Among them are:
- Your reasons for contesting the Will
- Your probability of success
- How much time it may take
- The expense
Because contesting a Will is a drastic measure to take, you should always first discuss your reasons for wanting to contest the Will with an experienced estate and probate lawyer to see if you have sufficient grounds for bringing a challenge.
Legal Grounds to Contest a Will
While each state has its own laws and rules governing Will contests, generally there are very few legal grounds for bringing one.
Here are just 3 legal grounds (there are others) on which a Will contest can be filed in Florida:
- Irregularities in the Execution of the Will
Because Wills are formal legal documents, they must comply with certain legal formalities in order to be valid. In Florida, a Will must:
- Be in writing, and
- Signed by the Testator at the end, and
- It must be signed by the Testator in the presence of 2 witnesses.
If the Will fails to comply with any of these formalities, it may be challenged as invalid.
- Lack of Capacity
Anyone over the age of 18 who is “of sound mind” may make a Will. This requirement is referred to as “testamentary capacity.” It means that the testator (person making the Will) must have the mental capacity to know the extent of his or her property, understand what s/he is doing, know who his/her heirs are, and understand the practical effect of making a Will.
If it can be proven that at the time he or she made the Will, decedent lacked testamentary capacity, that is grounds for challenging the Will.
- Undue Influence.
Another ground upon which a Will may be challenged is that of undue influence. Undue influence is an accusation that someone who substantially benefits under the Will made the testator change his Will or write it that way.
The legal ground of undue influence is more than mere persuasion.The petitioner (i.e., person challenging the Will) must show that the testator’s mind was so controlled by the undue influencer that the testator essentially had no free will. In other words, that the testator made his or her Will because he was overpowered (mentally and emotionally) by the undue influencer.
Anyone who wants to contest a Will must have standing to do so and should carefully consider what legal grounds exist for contesting a Will. A Florida estate and probate lawyer can give you the advice and guidance you need.
Protecting Your Family is Just a Phone Call Away.
Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today.