Inheritance doesn’t always go the way you might expect it to. For example, have you ever wondered what happens if the Florida Last Will and Testament (“Will”) of one of your loved ones is probated and you are stunned with disappointment over your share of the estate?
Is there anything you can do about it?
An experienced Florida estate and probate lawyer will tell you that it “all depends” of course, but given the right set of facts, yes, there is something you can do.
A Florida Last Will and Testament can be contested if…
you have standing, there are sufficient grounds to contest it, and the probate process has not been completed.
(Please note: each state has its own rules on will contests governing who may bring a contest, when, and on what grounds. Please check the laws in your state if you are considering a will contest. And be sure to consult an estate and probate lawyer near you.)
It Starts with Legal Standing
The legal process for objecting to a Florida Last Will and Testament is called a “will contest.”
Will contests are adversary proceedings that are brought within the context of the probate of a decedent’s estate.
If a person dies having left a Florida Last Will and Testament, a will contest challenges the validity of the Will on a specific legal ground. As we shall discuss later, there are a limited number of legal grounds for contesting a Will in Florida.
But before we get to the grounds upon which you can contest a Florida Last Will and Testament, it is important to understand exactly who can bring a will contest.
Not just anyone can contest a Will.
To bring a will contest, you must have “legal standing.” In other words, you must have a legal right or interest in the probate proceeding to contest the validity of the will.
At this point you may be wondering who has legal standing (or an interest) in a probate proceeding?
In Florida, the answer is, anyone who is considered an “interested person”. If you are an “interested person” within the meaning of Florida law, you may file a contest to challenge a Florida Last Will and Testament.
The legal term “interested person” is quite broad. Generally, the beneficiaries, creditors, and heirs of a decedent (i.e., deceased person) can contest a Florida Last Will and Testament.
Three Grounds for Contesting a Will in Florida
Bringing a will contest is not something that one should do lightly. These are contentious legal proceedings that are often quite expensive and time-consuming. As a result, it is not surprising that the law limits will contest to specific legal grounds. In other words, merely being disappointed—as in you were hoping you would get a lot more or would get something different— won’t constitute sufficient grounds for bringing a will contest.
Additionally, there are a number of factors to consider before deciding whether or not to file a Will contest.
Some of the things you should think about (and by no means is this an exhaustive list), are:
- Your reasons for contesting the Will
- Your probability of success
- How much time it may take
- The expense
Because contesting a Florida Last Will and Testament is such a substantial undertaking, 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, there are generally a limited number of legal grounds on which to base a will contest.
Here are just 3 legal grounds (there are others) for contesting a Florida Last Will and Testament:
- Irregularities in the execution of the Will
Since Wills are formal legal documents, they must comply with certain legal formalities to be valid.
A Last Will and Testament in Florida must:
- Be in writing,
- 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 requirements, it may be challenged by a will contest as invalid.
- 2. Lack of capacity
Anyone over the age of 18 who is “of sound mind” may make a Last Will and Testament in Florida. This requirement is referred to as having “testamentary capacity.”
It means that the testator (i.e., the 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 the testator made the Will, he or she lacked this testamentary capacity, then grounds for challenging the Will may exist.
- 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 a Florida Last Will and Testament made the testator either write his Will, or change his/her Will, to be in the beneficiary’s favor.
The legal ground of undue influence is more than asserting that the testator was “persuaded” by the beneficiary to change his or her Will in the beneficiary’s favor. The petitioner— the person challenging or contesting 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, the petitioner must show that the testator made his or her Will (or changed it) because he/she was overpowered (mentally and emotionally) by the undue influencer.
In sum, anyone who wants to contest a Florida Last Will and Testament must have standing to do so. And he or she should carefully consider what legal grounds exist for contesting the Will. A Florida estate and probate lawyer can give you the advice and guidance you need.
Questions About Contesting a Florida Last Will and Testament? Contact Us for Answers
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 954-466-0842 or email us at: [email protected] today.