Florida Will Contests
Florida Will Contests
The Florida legislature has passed a law that prevents anyone from contesting a will before the death of the testator. (Florida Statute §732.518) However, in many instances the beneficiaries, heirs, and other interested parties will not know the contents of a loved one’s Last Will and Testament until after their death, when the document is revealed as a part of the probate administration.
Fast deadlines for will contests established under Florida Law.
According to Florida law, after a Notice of Administration is received by a potential claimant, that claimant has a mere ninety (90) days to consider their options, accumulate the proper supporting documentation, hire an attorney, and file a formal suit contesting the will. That time frame is shortened to only twenty (20) days if a Formal Notice of Administration has been received before the will has been admitted into probate.
What is a Florida Will Contest?
A Florida Will Contest is a formal lawsuit that is filed to contest, or challenge, a decedent’s Last Will and Testament.
The most common bases for challenging a will in Florida are:
1. Undue Influence.
In a Florida Will Contest, the will is presumed to be the result of undue influence. Why? According to Florida law, “[t]he presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships….” (Florida Statute §733.107)
The burden of proof in a will contest on the basis of undue influence is statutorily defined. Pursuant to Florida Statute §733.107, in these cases the parties arguing for the will’s accuracy – the proponents of the will --- must establish its formal execution and attestation with prima facie evidence. It is only after the will’s proponents have established their arguments to the court with legally admissible evidence that the parties challenging the will -- the contestants – must act.
This is important because Florida law has placed the evidentiary burden upon those supporting the will to prove it is acceptable before the party who has filed the suit has any responsibility to proving up his challenge. Once the prima facie case is presented by the proponent, only then is the contestant required to establish the grounds on which they are opposing the will and seeking revocation.
Why? Because undue influence is wrong. It happens when a vulnerable person is conned or manipulated into executing a will by an individual seeking to benefit from that person’s death. The evildoers can be family members, caregivers, friends, or neighbors – anyone with access to the vulnerable person and with the intent and ability to apply the needed pressure upon the testator to have him change his will.
Common scenarios are one sibling talking their elderly parent into disinheriting their siblings; hovering caretakers maneuvering their way into their patient’s bequests; and sadly, there are occasions when friends, neighbors, or family members simply frighten the person into changing their will by threats of violence or abandonment.
By having the law presume that a will is the result of undue influence, those promoting it as a valid presentation of the decedent’s true wishes are forced to prove this is true.
2. Testamentary Capacity.
To make a valid will in the State of Florida, one must be of (a) sound mind and either (b) 18 or more years of age or (c) an emancipated minor. (Florida Statute §732.501) Sound mind is the mental ability or capacity to understand the making of a will as well as knowing your assets and being able to choose what individuals should receive them. It only needs to be present when the will is being written – and this has been the source of many lawsuits, as parties argue whether or not an elderly or ill decedent was aware and mentally capable to execute a will at the time that it occurred.
Testimony of medical professionals to the effects of traumatic brain injury, Alzheimer’s disease, or severe mental illness (psychotic behavior) can be used to argue a Florida Will should not be probated because it is the byproduct of mental incapacity. However, merely arguing that someone is elderly, bedridden, or suffered from a failing memory or vacillating consciousness due to illness is not enough to prove testamentary incapacity. The key is whether the individual had mental capacity at the time that he made the Will.
Often, as the Will is being finalized, an attorney will ask the maker of the Will a series of questions before witnesses or on videotape to circumvent later challenges to testamentary capacity. These queries will include asking the individual to identify himself and explain what is happening, to confirm his understanding that he is preparing a Last Will and Testament and his understanding of what that means, to give a brief description of his assets, and to identify who is to be named as beneficiaries and why – as well as what individuals have been chosen not to receive any distribution, and the reasons for that disinheritance.
3. Failure to Execute with the Required Formalities.
Florida Statute §732.502 sets for very particular requirements that a testator must follow for the Will he executes to be valid. Sometimes these requirements are not followed, which may result in the Will being determined invalid.
If you have comments or questions regarding how a lawyer experienced in will contests at the Law Offices of Adrian Philip Thomas, P.A. might be of assistance in your particular circumstance, then please feel free to contact the firm’s office to schedule a free initial consultation with one of our attorneys.
At the Law Offices of Adrian Philip Thomas, P.A. we consider it an honor to be of assistance to you.
