Blogs from March, 2011

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What is a Will Contest?

A will contest is a challenge to the Last Will & Testament submitted for probate on behalf of a decedent.  This firm represents both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament.

For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. It is a serious mistake to assume a Last Will and Testament that appears to be signed correctly actually complies with Florida law. In fact, the burden of proof is initially on the person challenging the Last Will and Testament to prove that it was not signed in accordance with Florida law. Florida Statute Section 732.502 requires that a Last Will and Testament is in writing, that it is signed at the end by the Testator (or by another person at the testator’s direction), and that the testator signs the Last Will and Testament in the presence of two subscribing witnesses. One critical factor is that the witnesses sign the Last Will and Testament in the presence of each other. To prove whether a Last Will and Testament was improperly signed requires skilled and careful cross-examination of the witnesses who were present at the time of the signing of the Last Will and Testament.

The major grounds for contesting the validity of a Last Will and Testament are undue influence and lack of mental capacity or lack of testamentary capacity.

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