Contesting a will is a legal process that allows someone to challenge the validity of a will in probate court. In Florida, the court generally follows a person’s final wishes as outlined in their will, but in certain situations, individuals may have valid reasons to contest it. This article explains the legal grounds, procedures, and steps to successfully contest a will in the Sunshine State.
Can You Legally Contest a Will?
Not everyone has the right to contest a will. Florida law limits challenges to individuals with standing—typically, these are people who stand to gain or lose financially from the outcome, such as:
- Beneficiaries named in the will
- Heirs (family members who would inherit under state intestacy laws if no will existed)
- Beneficiaries of prior wills that are revoked by the current one
If you have standing, you must also have valid legal grounds to challenge the will.
Legal Grounds to Contest a Will
Florida law allows challenges to wills for the following reasons:
1. Lack of Testamentary Capacity
For a will to be valid, the person making it (the testator) must have been of sound mind at the time of signing. This means the testator must have understood:
- The extent and nature of their assets
- Who their beneficiaries are
- The legal effect of making a will
If someone believes the testator lacked this mental capacity—due to dementia, illness, or other conditions—they can contest the will.
2. Undue Influence
Undue influence occurs when someone exerts pressure or manipulates the testator into creating or changing a will in a way that benefits them. Courts scrutinize cases where:
- The beneficiary had a confidential or fiduciary relationship with the testator
- The testator was isolated or dependent on the beneficiary
- The changes to the will seem unnatural or unexpected
3. Fraud
A will may be challenged if it was created under false pretenses. Fraud could involve:
- Tricking the testator into signing a will they didn’t understand
- Providing misleading information that influenced the testator’s decisions
4. Duress
Duress occurs when someone uses threats or force to compel the testator to create or change their will. This can invalidate the will, as it does not reflect the testator’s true intentions.
5. Improper Execution
Florida law requires specific formalities when executing a will. If these formalities are not followed, the will can be deemed invalid. A valid Florida will must:
- Be in writing
- Be signed by the testator (or by someone else in their presence and at their direction)
- Be witnessed and signed by two witnesses in the presence of the testator and each other
If these requirements are not met, the will can be contested as improperly executed.
Process for Contesting a Will
1. Act Quickly: Understanding Time Limits
In Florida, a will contest must be filed within 90 days of receiving notice that the will has been admitted to probate. If formal notice is not given, the deadline is extended to 4 months from the date of the will’s admission. Missing these deadlines could prevent you from contesting the will.
2. Hire a Probate Attorney
Contesting a will involves complex legal procedures, so it’s essential to hire an attorney experienced in state probate law. An attorney can evaluate the strength of your case, file the necessary paperwork, and represent you in court.
3. File a Petition to Contest the Will
Your attorney will prepare and file a petition to contest the will in the probate court where the will is being administered. The petition outlines the legal grounds for contesting the will and provides evidence to support your claim.
4. Notify Interested Parties
All interested parties—such as beneficiaries, heirs, and the personal representative of the estate—must receive formal notice of the contest. They have the right to respond and present their side in court.
5. Discovery and Evidence Collection
The discovery process involves gathering evidence to support your claim. This may include:
- Medical records to prove lack of capacity
- Emails, letters, or texts showing undue influence or fraud
- Testimony from witnesses or the drafting attorney
The other parties may also conduct discovery to defend the validity of the will.
6. Court Hearings and Mediation
In Florida, probate courts may require mediation to resolve disputes before proceeding to trial. Mediation allows the parties to negotiate a settlement, potentially avoiding a long and costly court battle. If mediation is unsuccessful, the case will go to trial, where the judge will decide whether the will is valid.
7. Court Ruling
If the judge finds that the will is invalid, the court may:
- Uphold a previous version of the will (if available)
- Distribute the estate according to state intestacy laws (if no prior will exists)
If the will is upheld, the probate process will continue as originally planned.
What Happens if a Will Contest Succeeds?
If the court declares the will invalid, the next steps depend on whether an earlier valid will exists:
- If a prior will is available, the court will distribute the estate based on the terms of that will.
- If no prior will exists, the estate is distributed under state intestacy laws, which prioritize spouses, children, and other close relatives.
Costs and Risks of Contesting a Will
Contesting a will can be expensive, especially if the case goes to trial. Legal fees, court costs, and expert witness fees can add up quickly. Some wills include “no-contest clauses” that threaten to disinherit beneficiaries who challenge the will. However, Florida law generally does not enforce these clauses, allowing you to contest the will without losing your inheritance.
Contesting a will is a complex process, but it may be necessary to ensure the testator’s true intentions are honored. To succeed, you must act quickly, gather strong evidence, and work with an experienced probate attorney. If you believe a will is invalid due to lack of capacity, undue influence, fraud, or improper execution, the Florida courts provide a pathway to challenge it
By following the proper legal procedures and understanding your rights, you can navigate the process and protect your interests or those of your family.
This article is intended to provide general guidance. For specific guidance regarding wills, estate planning or probate, we recommend consulting with Attorney O’ Connor.
•••
Attorney O’Connor has extensive experience with estate planning and probate law and is available to serve you in Tampa Bay, Brandon, Kissimmee, Lakeland, Plant City, Hillsborough County, Pinellas County, Polk County and Osceola County.
