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.
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.
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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.
Adrian and Jeff, thank you to BOTH of you for all your hard work, diligence, PATIENCE, advice, time, and effort- V.F.
Adrian - you delivered as Dan promised you would.- J.M.
Thank you, thank you, thank you.- J.A.
Thank you for your expertise and guidance in resolving my case.- D.F.