When estate planning, a will is an essential document to express your final wishes. And upon someone’s death, whatever is in the will goes. For the most part.
Since the deceased person isn’t there to verify their wishes, the courts tend to stick with what is expressed in the will. Sometimes, however, the validity of a will might be challenged in court. This is called a will contest.
But in what situations can someone challenge or contest a will? Let’s answer some frequently asked questions.
Can I contest a will if it wasn’t executed properly?
Yes, and this is the most common problem when it comes to will contests. If someone doesn’t use an experienced attorney to help them properly execute a will, the validity of a will can be challenged. Florida law says a will has to be written and signed by the testator – the creator of the will – in the presence of two witnesses. The testator and witnesses must also be competent when signing and witnessing the will.
Can I contest a will before someone dies?
No, you can’t. While a will has to be properly executed when someone is alive for it to be valid upon their death, it cannot be challenged until the testator’s death. Under Florida law, “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”
Can I contest handwritten changes to an original will?
Yes. A testator might try to modify his or her will by directly changing the original. Maybe they cross out names or change percentages for beneficiaries, but these changes aren’t valid. Just like when creating an original will, you have to properly execute any changes made as well. You have two options when it comes to altering your will: create a brand new will that revokes the original or execute an amendment to the will – a codicil – that formally changes the will. In either situation, you have to have the new will or codicil properly executed in order for it to be valid.
Can I contest a will that says anyone who challenges it will be cut out?
You can. These clauses – known as in terrorem clauses – are void in Florida because they are used as legal threats. The Florida statutes clearly state that, “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” So if one of these clauses is written in a will, the will can be challenged.
When can I contest a will?
Once someone dies, their estate has to go through probate, the court-supervised process of passing property from a decedent to their beneficiaries. The deceased’s personal representative submits a Petition for Administration and Petition to Admit Will. When this happens, any interested parties will be served a formal notice with 20 days to object. Then, the personal representative will publish or serve a Notice of Administration, which allows someone to contest the will within a 90-day period.
Can I contest a will if I married the testator after the will was made?
You may not have to contest a will to receive an inheritance. If you married someone after their will was made, you are a “pretermitted” spouse. Florida law assumes that a decedent wants to provide for his or her spouse and allows for an intestate share of the estate.
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.