Blogs from February, 2013


The client often calls Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance.

First, the Will should be scrutinized to see if it was properly executed, witnessed, and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized.

Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit those assets, and the legal effect of signing the Will.  A Will can be declared invalid if the Testator lacked the appropriate capacity to execute the Will.  In the case of Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274 (Fla. 3rd DCA 2006), the decedent had executed a new will in 2005 while in the hospital with severe pain and under the influence of strong medications. The decedent’s physicians testified that the medications the decedent had been taking changed her personality, and a psychiatrist testified that the decedent was delusional.  The Court found that through the testimony of a caretaker and physicians, the decedent was suffering from an insane delusion at the time the Will was executed, and therefore lacked testamentary capacity which invalidated the Will.  Id.  The Court further defined an insane delusion as a spontaneous conception and acceptance as a fact of that which has no real existence except in imagination.  Id.  This case was unusual.  Generally, lack of capacity is established through medical records and testimony of caretakers and relatives.

Third, even if the Testator had the capacity, he may have been influenced or coerced to sign the Will, which are grounds for setting the Will aside.  Nagging, threats, and verbal abuse are not enough to prove undue influence.  The undue influencer would actually perform certain acts, such as contact the Testator’s attorney, tell the attorney what language is to be placed in the Will, pay for the Will to be drafted, accompany the Testator to the signing of the Will, hold the original Will in their possession, and isolate the Testator from family and friends.  The undue influencer could be a healthcare provider/aide who threatens to withhold care and treatment of the Testator unless the new Will is executed in his favor.  The case of In re Estate of Carpenter, 289 So.2d 410 (Fla. 4th DCA 1974) is the most followed Florida case regarding undue influence standards.

Also, Florida law holds that if a Will is procured by fraud, wherein the Testator is tricked into signing the Will, then the Will can be contested and could be deemed invalid.  Usually, the testimony of the witnesses and notary to the Will are needed to prove what the Testator thought he or she was signing at the time the Will was executed.

If you would like to know “how do I contest a Will?” and would like to speak with a Florida probate lawyer, call Adrian Philip Thomas, P.a. toll-free for a free initial consultation.


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