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Florida Will Contest

A Will can be challenged by a lawyer in a Florida probate proceeding on a number of grounds.  A Florida Will Contest is an adversary proceeding within the meaning of Florida Probate Rule 5.025.  Whether the Will has been formally admitted to probate will determine which pleadings should be filed.  A Will Contest is brought in probate court.

The Florida legislature has passed a law that prevents anyone from contesting a will before the death of the testator. Fla.Stat. §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 his or her death, when the document is revealed as a part of the probate administration.

Fast deadlines for Florida Will Contest 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 his options, accumulate the proper supporting documentation, hire an attorney, and file a formal law 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.  (Read our Florida Probate Blog for more on this topic.)


Undue Influence

How does someone bring a Florida Will Contest based on undue influence?

The theory underlying an undue influence claim is that the testator’s mind was so controlled by persuasion, pressure and outside influences that he did not act voluntarily but was instead subject to the will (meaning “will power”) of another when executing the Last Will & Testament.  The person challenging the Will for undue influence has the burden to establish the presumption of undue influence, which can be met by showing that the undue influencer:

  1. is a substantial beneficiary under the Will
  2. occupied a confidential relationship to the decedent, and
  3. was “active” in procuring the Will

Each of these elements has a body of case law trying to interpret what is meant.  The first two prongs are considerably easier than the third to establish.  For the “active procurement” prong of the test, the seminal Florida undue influence case is In Re Estate of Carpenter.  In it, the Florida Supreme Court listed seven (7) nonexclusive factors to assist the courts in determining whether there was active procurement:

  1. presence of beneficiary at execution
  2. presence of beneficiary on occasions when testator expressed desire to make Will
  3. recommendation by beneficiary of an attorney to draw the Will
  4. knowledge of contents of Will by beneficiary prior to execution
  5. giving instructions on preparation of Will by the beneficiary to the attorney
  6. securing witnesses to the Will by the beneficiary
  7. safekeeping the Will by the beneficiary

If the person challenging the Will based upon undue influence successfully convinces the court that there should be a presumption of undue influence, then the burden shifts to the person trying to admit the Will that there was no undue influence.

Lack of Testamentary Capacity

How does someone challenge a Florida Will based on lack of testamentary capacity?

One of the qualifications mentioned above is that the testator must be “of sound mind.”  What does this mean in terms of executing a valid Will?  In 1953, the Florida Supreme Court held that it meant the testator had the ability to understand generally 1) the nature and extent of his property, 2) the relationship of those who would be the natural objects of his bounty (heirs), and 3) the practical effect of a Will.  In re Wilmott’s Estate, 66 So.2d 465 (Fla. 1953)

Testamentary capacity is not the same as capacity – it is a lower standard.  The Florida Supreme Court has held that “even a lunatic may make a will…in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So.2d 647 (Fla. 1954)  Further, Florida courts have held that factors like old age, physical failings, memory failings, or shifting judgment do not, in themselves, establish lack of testamentary capacity.  In re Estate of Dunson, 141 So.2d 601 (Fla. 2d DCA 1962)

Testamentary capacity of the testator is generally presumed, so the burden of proving that the testator lacked testamentary capacity is on the person challenging the Will.  To make matters more difficult, it must be demonstrated that the testator lacked capacity at the time the Will was signed.  The testator might have thought that pigs were flying on Tuesday and Thursday, but that does not mean that he thought pigs were flying on Wednesday at 1:00 pm when he signed the Will.  The person challenging a Will based on lack of testamentary capacity has a heavy burden.  The challenger is allowed to offer evidence showing the decedent’s mental condition before and after signing the Will and evidence that the mental disability was permanent will create a presumption that it continued.

The person offering a Will that was challenged for lack of testamentary capacity should try to show the court that even if the testator was failing and of weak mind that he also had lucid intervals.  Conversely, the person challenging the Will should try to establish that the testator’s mental incapacity was continuous.  Some mental infirmities, especially those associated with old age like dementia, are chronic and regressive by nature and point toward continuing disability.

Execution Formalities

The initial consideration in evaluating a Florida Will Contest case is whether the Will is executed properly.  It is much simpler and less expensive to attack a Will on technical grounds than it is on grounds like undue influence or lack of capacity.

In determining whether a Will or other testamentary instrument is valid, the requirements for execution and qualification are controlled exclusively by statute.

The qualifications for making a valid Will in Florida are that the testator (person making the Will) must be of sound mind and at least 18 years of age.

Assuming the testator was qualified to make the Will, then the document itself needs to be examined to determine whether it was executed according to the statutory formalities set forth in Fla.Stat. §732.502, which are:

  • Will must be in writing
  • Will must be signed by the testator (or another at the testator’s direction)
  • Testator must acknowledge signing (or directing another to sign) in the presence of two witnesses
  • Two witnesses must sign in the presence of each other and of the testator [this factor is of critical importance and is the one most likely to be done improperly]

Florida courts have held Wills to be invalid when the witnesses testified that they did not sign in the physical presence of each other.  In fact, the 5th DCA went so far as to hold that “in the presence of each other and of the testator” does not mean in the physical proximity or vicinity of one another.  Price v. Abate, 9 So.3d 37 (Fla. 5th DCA 2009)  For example, if one of the witnesses was in the testator’s home making a cup of coffee in the kitchen while the testator signed the Will in the dining room, the document is invalidly executed and therefore invalid.  The testimony of eyewitnesses to the Will execution is of great weight.

Many Wills include a “self-proof affidavit,” which is an attachment with an oath that states that the testator and the witnesses signed in the presence of each other and took that oath in front of a notary public.  The form of language is set forth in Fla. Stat. §732.503.  A properly-executed self-proof affidavit makes it more difficult to challenge a Will on the grounds of improper execution; however, sometimes the affidavit itself is improperly prepared and therefore requires careful scrutiny.

Insane Delusion

Another form of incapacity is insane delusion.  The Florida Supreme Court has defined insane delusion as a “fixed false belief without hypothesis, having no foundation in reality.”  Hooper v. Stokes, 145 So. 855 (Fla. 1933).  Other Florida courts have expounded on this concept by adding that the fixed false belief must be persistently adhered to against all evidence and reason.  In Re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983)

One of the most-often cited insane delusion case in Florida is Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274 (Fla. 3d DCA 2006).  In it, the decedent executed a new will in 2005 while in the hospital with severe pain and under the influence of a strong medication. She passed away the next day. The new will disinherited the caretaker and left the decedent’s estate to several charities. The caretaker asserted that the decedent was suffering from an insane delusion at the time the will was executed and that she thus lacked testamentary capacity. The decedent’s physicians testified regarding the medication that the decedent was taking and how it had changed her personality. A psychiatrist who saw the decedent opined that she was delusional when she stated that the caretaker had abandoned her and had killed her dog. To the contrary, witnesses and evidence supported the position that the caretaker visited the decedent in the hospital every day and the caretaker gave credible testimony that she was continuing to care for the dog. Accordingly, the court set aside the Will as invalid based upon insane delusion.

Lack of testamentary capacity renders the entire Will invalid.  An insane delusion may affect all or only part of a Will.


Florida law provides that a Will is void if it is procured through fraud.  Fla. Stat. §732.5165  Fraud defeats the testator’s wishes through deceit.  There are four (4) general elements of fraud:

  1. False representations of material facts to the testator
  2. Knowledge by the perpetrator that the representations are false
  3. Intent that the representations be acted upon
  4. Resulting injury

There are two primary types of fraud:

  • Fraud in the Execution – the testator was told the Will he signed was something other than a Will.
  • Fraud in the Inducement – the testator is intentionally misled by a material fact which caused the testator to make a different devise than he would otherwise have made.


Duress is uncommon, but it involves some threat of physical harm or coercion practiced upon the testator by the perpetrator which caused the execution of the Will.

If you believe that you have been improperly cut out of a will or you have questions about a Florida Will Contest, please call the Florida probate lawyers at Adrian Philip Thomas, P.A. for a free consultation.

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