Florida Will Contest FAQs
Can I challenge a Will if it was not signed properly?
Yes, Florida Statute §732.502(1) requires that a Will be in writing, that it be signed at the end by the testator (person who is making the Will), and that the testator sign in the presence of two witnesses (or acknowledge to the two witnesses that he/she signed the Will). Carefully read, these are three separate requirements that must all be met for a Will to be validly executed in Florida. Improper execution is a common problem when testators elect to prepare and execute Wills without the assistance of attorneys.
Can I challenge a Will if the witnesses were not competent?
Yes, in fact the capacity of the witnesses to the Will is just as important as the capacity of the testator. Years ago, we had a case in our office where a woman who was in a psychiatric hospital as the result of a Baker Act proceeding executed a Will and the two witnesses were fellow patients in the psychiatric ward. Accordingly, mental capacity, not only of the testator but also of the witnesses, was at issue in that case.
Can I challenge a Will if the testator was in Hospice care at the time he/she made it?
It depends. While Hospice care is palliative, end-of-life care, the fact that a testator was receiving it does not necessarily mean he/she lacked capacity. That said, it is certainly worth investigating because oftentimes at the end of a terminal condition, the condition itself may result in diminished capacity or the patients may be administered heavy narcotics that interfere with their normal capacity.
Can I challenge a Will that leaves everything to my siblings but cuts me out completely?
It depends. In Florida, there is no law that requires a testator to make provisions for adult children. The fact that you have been cut out alone does not necessarily give rise to a will contest action. However, if your parent had long-standing testamentary documents leaving everything equally to all of his/her children and made an end-of-life change in favor of a sibling who may have put himself in a confidential relationship with the parent, you may have a case for undue influence.
Can I challenge a Will that says anyone who contests it will be cut out?
Yes. These clauses are referred to as “in terrorem” clauses, which is Latin for “to frighten,” and are void in Florida. Florida Statute §732.517 states “a provision in a Will purporting to penalize any interested person for contesting the Will or instituting other proceedings relating to the estate is unenforceable.”
Can I challenge a Will before the testator dies?
No. Florida Statute §732.518 states that any action to contest the validity of all or part of a Will or the revocation of all or part of a will may not be commenced before the death of the testator.
When can I challenge a Will?
When a testator dies, the Will is offered for probate. Generally, the person who seeks to be appointed personal representative (executor) files the original Will with the probate court and submits a Petition for Administration and Petition to Admit Will. At that time, a copy of the Petition for Administration should be served on all interested persons via formal notice, which gives the interested person 20 days to object. Alternatively, the personal representative, once appointed, will serve or publish a Notice of Administration, which gives a 90-day period for challenging a Will or the appointment of the personal representative (albeit after the person has been appointed).
Can I challenge “changes” made to a Will by handwritten notes on the original?
Yes. Sometimes a testator (or someone) will attempt to make changes to a Will by writing directly on the original – crossing out names, changing percentages, modifying personal representative nominations. These changes are not valid. The proper way to change a Will is to execute a completely new Will that revokes the prior one or to execute a “codicil” which is an amendment to the Will that changes certain provisions. Codicils must be executed with the same formalities as a Will.
Can I challenge a Will that does not make any provisions for me because I married the testator after he made it?
A will contest is generally not the appropriate mechanism to secure your inheritance in this circumstance. You are what is known as a “pretermitted” spouse. The law assumes that a decedent wants to provide for his spouse and – to the extent the marriage took place after the execution of the Will – that the decedent intended to provide for you. Florida Statute §732.301 provides for an intestate share of the estate to the pretermitted spouse. Of course, if you and your spouse had a pre-marital agreement wherein you waived your right to inherit, then you would not be entitled to a pretermitted share of the estate.
If you have a Florida probate dispute, please call Adrian Philip Thomas, P.A. for a free consultation with an attorney. Read more about Florida Will Disputes and challenging a Will in Florida.