Contesting a Will

A Will is a legal document which sets out an individual's, known as the testator, wishes for how they would like their property distributed upon their death. However, sometimes the testator's wishes may be influenced by another person, or they may lack capacity to create the Will. In those situations, an individual may be able to "contest" the Will, or challenge it.

Contesting a Will is no easy feat. In order for an individual to contest one, they must be considered an "interested person" with a valid legal basis for the challenge, and the testator must have passed away. An interested person is anyone who may be reasonably expected to be affected by the probate proceedings. Additionally, the challenge must be made in the probate court where the Will has been admitted for probate within 90 days after receipt of a Notice of Administration, or 20 days after receipt of a Formal Notice of Administration.

Perhaps most importantly, the contesting individual must have a valid legal basis for the challenge. There are limited situations where an individual may contest a Will, such as undue influence, fraud, failure to comply with Florida statutes, and lack of testamentary capacity.

Undue influence is influence by another individual that so strongly overcomes the testator's own desires that their Will is a result of that individual's influence rather than their own free will. To prove a testator was unduly influenced, it must be proved that the influencer held a confidential relationship with the testator, became a substantial beneficiary of the testator's estate as a result of their influence, and actively assisted in creating the Will.

Fraud occurs in two different situations. The first is when a testator designates property based on a mistaken belief, such as the belief that an individual has substantial money, when in reality, they do not. Secondly, fraud may arise if the testator signs the Will while believing it is another document, such as a deed or other contract.

Florida statutes lay out specific guidelines for executing a Will which must be strictly complied with for the Will to be valid. If the Will is not executed according to these statutes, it may be declared invalid. For instance, Florida fails to recognize oral Wills, meaning if a provision in a Will states: "To my child, distributed as I orally directed them," it would likely be declared invalid.

To execute a Will, a testator must have "testamentary capacity." This requires the individual to be able to generally understand their assets and how the Will distributes those assets.

Contesting a Will is a complex process. If you have questions or need assistance in contesting a Will, contact the Law Offices of Rina Feld today for a consultation.

This article is not meant to be legal advice nor create an attorney-client relationship.