Will Contest & Disputes

Florida Will Contest & Disputes Attorneys

Fierce Litigators Serving Clients Throughout Florida

There are several grounds that a will can be challenged by a lawyer during a Florida probate proceeding. Whether the will has been formally admitted to probate will determine which pleadings should be filed. The Florida legislature has passed a law that prevents anyone from contesting a will before the death of the testator. However, in many instances, the beneficiaries, heirs, and other interested parties will not know the contents of a loved one’s will until after their death when the document is revealed as a part of the probate administration.

How Do I Contest a Will in Florida?

The party who wishes to contest a will must file a petition in the probate court where the will is being probated, and request that the court revoke or deem the will invalid due to undue influence, fraud, coercion, or other legal grounds. The estate and court will then be notified of your wish to contest the will, and the case will either settle or go through a hearing where a judge will decide on its validity.

Individuals who can contest a will include:

  • Beneficiaries named in the current will
  • Beneficiaries of a previous version of the will
  • Individuals not named in the will but may have been eligible to inherit the estate due to intestacy laws

If you need assistance contesting or will, contact our attorneys at Adrian Philip Thomas, P.A. for help. We have extensive experience resolving will disputes and other estate and probate litigation matters.

Is There a Deadline for Contesting a Will?

According to Florida law, after a Notice of Administration is received by a potential claimant, that claimant has only 90 days to consider his options, accumulate the proper supporting documentation, hire an attorney, and file a formal lawsuit contesting the will. This time frame is shortened to 20 days if a Formal Notice of Administration has been received before the will has been admitted into probate.

Contesting a Will Over 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 they did not act voluntarily and were instead subject to the will power of another individual when executing the last will and 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:

  • Is a substantial beneficiary under the Will
  • Occupied a confidential relationship with the decedent
  • Was “active” in procuring the Will

To learn more about how we can assist with proving undue influence, please click here.

Contesting a Will Over Lack of Testamentary Capacity

In 1953, the Florida Supreme Court held that being “of sound mind” meant the testator could generally understand the following:

  • The nature and extent of their property
  • The relationship of those who would be the natural objects of their bounty
  • The practical effect of a will

Testamentary capacity has a lower standard than capacity. In Murrey v. Barnett National Bank of Jacksonville, the Florida Supreme Court held that “even a lunatic may make a will…in a lucid interval.” Further, Florida courts have held that factors like old age, physical failings, memory failings, or shifting judgment do not, in themselves, establish a lack of testamentary capacity.

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. While the testator might have thought that pigs were flying on Tuesday and Thursday, it does not necessarily mean they thought pigs were flying on Wednesday at 1:00 pm when they 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.

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 they 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.

Contesting Execution Formalities

The initial consideration in evaluating a will contest case is whether the will was 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. The testator must be of sound mind and at least 18 years of age for a will to be valid in Florida.

If 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 following statutory formalities:

  • A will must be in writing
  • A will must be signed by the testator
  • A 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

Florida courts have held wills to be invalid when the witnesses testified that they did not sign in the physical presence of each other. However, 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 an oath in front of a notary public.

Although a properly executed self-proof affidavit makes it more difficult to challenge a will on the grounds of improper execution, sometimes the affidavit itself is improperly prepared and requires scrutiny.

Contesting a Will for Insane Delusion

Another form of incapacity is insane delusion. In Hooper v. Stokes, the Florida Supreme Court defined insane delusion as a “fixed false belief without hypothesis, having no foundation in reality.” 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.

One of the most-often cited insane delusion cases in Florida is Miami Rescue Mission, Inc. v. Roberts. In it, the decedent executed a new will in 2005 while in the hospital with severe pain and under the influence of 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. On 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.

Contesting a Will for Fraud

Under Florida law, a will is void if it is procured through fraud. Fraud defeats the testator’s wishes through deceit. There are four (4) general elements of fraud:

  • False representations of material facts to the testator
  • Knowledge by the perpetrator that the representations are false
  • Intent that the representations be acted upon
  • 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 device than he would otherwise have made.

Schedule a Complimentary Consultation Today

At Adrian Philip Thomas, P.A., we understand that estate litigation law is ever-developing in Florida, which is why we make great efforts to keep our legal professionals informed. Since 2002, our reputable legal team has represented thousands of clients in estate-related disputes, both prosecuting and defending. If you need help contesting a will in the state of Florida, please do not hesitate to call our firm so we can get started drafting a comprehensive legal strategy.

To request a free case consultation, call (800) 776-3103 or contact us online so we can help you pursue justice.

The Stories That Matter

Read Our Client Thank You Notes
  • Thank you very much!

    “Hi Dan [McGowan], I thought that the hearing went well. I thought you did extremely well and presented a very logical, viable case against summary judgment. Thank you very much!”

    - M.L.
  • Thank you again.

    “Dear Mr. Bunin, I want you to know I am thrilled with your work and that you have started working on my case. I think we are off to a great start. I am finally sleeping better and know we are going to ...”

    - A.V.
  • Thank you again for all your hard work and attention to detail.

    “Hi Dan [McGowan], I want to thank you for your time this morning. The zoom call was extremely informative and helpful to all of us. It gives me great comfort to know that you are handling our case and ...”

    - K.S.
  • Robert and his team are just outstanding in every way.

    “Robert and his team are just outstanding in every way. Compassionately competent. Could not be a happier client. I owe you gentleman much gratitude.”

    - P.V.
  • Again, thanks to you and your firm for doing a great job for another of my clients.

    “Again, thanks to you and your firm for doing a great job for another of my clients. Best,”

    - L.D.
/
  • Martindale AV-Rated
  • The American Lawyer
  • Top Rated Lawyers
  • Legal Elite 2012
  • Daily Business Review
  • Top 100 Lawyers
  • Avvo Rating 10.0 Top Attorney Litigation
  • Forbes
  • Legal Readers

Let Us Fight for You

Contact Us Today for Your Complimentary Consultation
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.