Contesting A Will in Florida

Florida law gives interested parties the ability to challenge the validity of the last will and testament being offered for Probate Administration. If you think that the last will and testament being offered to probate was procured by fraud, duress, trickery or any unethical means you have rights. These types of challenges are commonly referred to as will contests.

1. Obtaining a Copy of the Suspect Testamentary Documents

In order to be able to file an action for a will contest, you must have a material interest in the outcome. That means you must be either a beneficiary or a legal heir at law. If you suspect that you have been completely cut out of a testamentary plan and have not even been afforded notice of the probate proceeding, check the County where the decedent has passed away. Almost every Florida County will provide a Court Records Search to enable you to identify whether a probate has been opened. If it has not been opened or if it has and you have yet to receive notice, you may file a document called a Caveat that gives you notice of the upcoming proceedings. The Florida law concerning caveats is found in Florida Statute 731.110 which provides:

731.110 Caveat; proceedings.—
(1) Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court. The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered. The caveat of a creditor may be filed only after the person’s death.
(2)  If the caveator is a nonresident and is not represented by an attorney admitted to practice in this state who has signed the caveat, the caveator must designate some person residing in the county in which the caveat is filed as the agent of the caveator, upon whom service may be made; however, if the caveator is represented by an attorney admitted to practice in this state who has signed the caveat, it is not necessary to designate a resident agent.
(3)  If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules. This subsection does not require a caveator to be served with formal notice of its own petition for administration.
(4)  A caveat filed before the death of the person for whom the estate will be administered expires 2 years after filing.

2. Challenging the Will or Estate Documents

Once you have obtained a copy of the estate documents being offered for Probate Administration you have the ability in Florida to bring an adversarial action challenging the validity of the documents. The types of challenges vary depending on the circumstances in your particular case. Common reasons to challenge the validity of a Will offered for Probate in Florida include:

• Undue Influence
• Challenges to the qualification of the document
• Incompetency and Insane Delusion
• Fraud
• Revocation

Undue Influence

This is the most commonly used basis to invalidate an estate plan. In Florida, the challenger to a Will claiming undue influence must establish that due to coercion, pressure, persuasion and otherwise the testator was not able to exercise their own free dominion in order to choose their estate planning. Florida case law has created significant precedent for the finding of undue influence when a challenger to a will can establish the following:

(1) A substantial benefit conferred to a particular individual (the purported influencer) by the decedent.

(2) A confidential relationship between the decedent and that individual.

(3) Active procurement of the will by the alleged influencer.

Once these elements are established the alleged influencer has the burden to prove that the testamentary plan was not a product of undue influence. Substantial benefit is a relatively subjective term but any material benefit under the estate may count. The second element, a confidential relationship, has been defined to require only that the alleged influencer had a confidence upon which the decedent relied and was potentially abused. Finally, active procurement means that the alleged influencer took an active role in the creation of the last will and testament. Evidence of an active role can be show by presence at a will execution, recommendation to create a will, instruction on preparation, obtaining the witnesses to the will or safekeeping the will of the decedent.

Challenging the Validity of the Document

Florida law requires that a last will and testament created in Florida be executed in conformity of with the laws of the state. This means that in order for a will to be valid it must be signed by a testator in the presence of two witnesses and also be notarized. Since these requirements are relatively simple to achieve, this is one of the least used areas to challenge the validity of a will.

Incompetency and Insane Delusion

In order to properly execute a will you must be of sound mind. Our Florida Courts have defined “sound mind” to mean you can understand what you are signing and the nature of what you current property is at the time of execution. So this level of competence can exist even though someone is very old, frail or otherwise sick. The crucial determination is competency at the time of execution. Consequently, an analysis of the testator’s mental condition and medical records at the time of execution as determined by any treating health care provider is extremely relevant.

Fraud

In addition to the more nuanced reasons to challenge the validity of an estate planning document, sometimes the documents themselves are not really even procured by the decedent. In these types of challenges a document is allegedly forged and therefore not a true reflection of the testator’s intent. Cases is this type of category rely heavily upon witness creditability to the execution of a will and also make use of handwriting experts.

If you suspect that testamentary wishes of a friend or family member were prevented because of the actions of a wrongdoer or the circumstances surrounding his or her passing, give us a call to learn more at 813-501-5071 or contact us online here.