Were you recently named as a beneficiary in your uncle from Boca Raton’s will but you think you were entitled to a bigger share? Worse were you disinherited from the inheritance of a wealthy relative? The vehicle for change in a Florida Probate Court when this happens is a will contest. I am asked everyday about different situations all with the same hook can I challenge a will under these terms in Florida? The short answer is always it depends, but here is a crash course onwhat grounds you can contest a will for in Florida.
- Formalities: a properly executed will requires not only the signature of the testator ( the party making a will) but also two witnesses who also sign the will. These must benotarized. A will can be contested on the grounds that it has a flaw in the drafting, or signature. A common example is when the witnesses do not sign it at the same time as the testator.
- Lack of Capacity: in every state there is a requirement of mental capacity. A testatormust have the mental capacity to distribute their assets. A will can be declared void if lack of capacity can be prove. Typically this is proven through prior medical diagnosis of dementia, Alzheimers or other psychosis. Another common way istestimony from witnesses who knew the testator.
- Undue Influence: occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. Often the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.
- Insane Delusion: this occurs when a person has the mental capacity to create a willbut their belief in something, that is not true, changes or creates an estate planning document that is an insane delusion. For example if a parent disinherits a child because they feel the child never visits but the child regularly visits them, the court may hold that this was an insane delusion.
- Fraud: is the catchall that most plead when it does not fit into another category. Estate fraud occurs when a beneficiary of a will causes the testator to make or change a will based on misrepresentations. These must be plead and proven with a level of particularity that is much higher than other contests.
If you are considering challenging a will time is of the essence you typically get 90 days after the Notice of Administration! Know your rights and act to protect them