Florida Probate Courts and families of loved ones both want anequitable distribution of assets upon the death of an individual who resided or owned property in Florida. Florida law allows an individual to contest a will because of undue influence, fraud or mental capacity. What follows is a procedural crask course in contesting a will in Florida.
1 Time is of the Essence: In some types of court actions an individual may haveyears to file an action. You may challenge a will before the probate process is complete. Probate involves submitting the will and related documents to the probate court in the county where the decedent lived. If no one has yet submitted the will, no matter how much time has passed since the decedent passed away, you may challenge the will. After the will has been submitted to the court but while the probate process is still ongoing, the deadline depends on whether or not you received notification about the will.If you received notice, you must file within three months, but if you did not receive notice, you may file later than three months, so long as the probate process is not completed. Once the court has discharged the estate, in most cases, you can no longer challenge the will. The exception is when someone was prevented from challenging the will due to fraudulent conduct, such as intentionally failing to notify a family member that the decedent passed away. In that case, a will contest may be filed after the will is discharged.
2 You have to allege specific facts. To challenge a will in Florida you can either challenge the procedure for making it a will or the substance therein.Procedurally the will must be signed with two witnesses and a notary. Substantively a will may be void because someone else influenced the testator, i.e. undue influence, fraud (trickery) or lack of mental capability.
3 Ignore that “No Contest Clause.” Florida Courts will not enforce a No Contest Clause or any other type of provision in a will that purports topunish a person for contesting.
4 Procedure is Crucial. To challenge a will in Florida, you must file a Petition for the Revocation of Probate with the probate court. After the petition is filed, the personal representative, or person responsible for administering the estate, may continue with his administrative duties. However, the representative may not distribute any property from the estate that will end up with a different person if the will contest is successful. If you challenge the will, it is up to you to provide evidence that the will should be revoked.
What’s next? The Court may find that the entire will or just portions of the will are invalid. This will depend on what grounds it was challenged under. So, if challenged on the grounds of undue influence, the court may simply find one provision to be invalid. On the other hand, if the court finds that the decedent suffered from mental incapacity when writing the will, this would likely invalidate the entire will. When a will is found to be invalid, the estate will pass through Florida’s “intestacy” laws, which provide the rules for distributing the property of someone who died without a will.