The death of a loved one is both a sad and stressful time. Between dealing with funeral arrangements, tending to the sorrows of friends and family, and handling your own grief, it’s normal to feel overwhelmed. If you have to deal with acomplicated, confusing, or unfair will, an already challenging time can become even more difficult. It is, thus, important to understand your rights and the process by which the validity of a will can be contested.
In Florida, there are specific rules and regulations that you need to be aware of if you would like to contest a will.You are allowed to contest a will if you are convinced the document does not accurately reflect the decedent’s last wishes. Depending on the circumstances, it’s also possible to contest only part of the will rather than the whole thing.
First, there must bea legally valid reason to contest a will. Generally, grounds for disputing the validity of a will depend on state laws, but these are four common reasons that can get a will invalidated:
- The signing of the will violated state laws: Every state has specific regulations regarding the way in which a will should be signed. In Florida, a person must sign their will in the presence of two witnesses, whose signatures must also appear on the document. If the will does not meet this requirement, it can be contested and declared void.
- The signer did not understand the procedure: For a will to be valid, the signer of the will, also known as the Testator, must understand the results of the will and be capable of making logical decisions. You can contest a will if there is sufficient evidence that the Testator was compromised by lack of mental capacity.
- The signer was forced into signing a will: You can contest a will if there is evidence that the deceased was unduly influenced, threatened, or pressured to make and sign a will. Undue influence can include persuasion and coercion at the time the will was signed.
- The will was obtained under fraudulent circumstances: If there is evidence that the signer was tricked into signing the will, such as being told that the document was something different, then the heirs have a legitimate reason to contest the will.
All of these conditions are valid reasons to contest the will and ask for a re-evaluation. Once you have decided on what basis the will can be contested, you now must take the following steps:
- Establish your legal standing: Florida law stipulates that a person contesting a will must demonstrate that he or she has a legitimate interest in the will. You can do so by showing that you are or should have been a beneficiary.
- You must follow the legally-prescribed deadlines: In Florida, you can challenge the will before probate—the period following the death of a person when assets are gathered, estimated, and submitted to the probate court—is concluded. Generally, you have 90 days to file a will contest after receiving notice that the will has been submitted to the court. If no one submits the request or you are never given notice that it has been submitted, you can still contest it.
- You must then file a Petition for the Revocation of Probate with the probate court. This will stop the distribution of any assets while the court reviews the case.
One thing to be aware of is that you may have a right to contest a will even if you think you don’t. For example, it’s not uncommon for people to add an “in terrorem” clause to their wills outlawing a challenge to the will or stipulating that anyone who challenges a will automatically be disqualified from any inheritance. In Florida, it’s illegal to include such a statement in a will, and the state will not enforce it.
Finally, remember that contesting a will can be a costly endeavor, and it may disrupt your relationships with family and friends. It’s important to make a thoughtful and balanced assessment of the value of what you may gain over what you may lose.
About the Author
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.