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How to Challenge a Will

How to Challenge a Will in Florida

How do you file a Florida will contest? Well, many dis-inherited heirs, former beneficiaries, and family members may want to know. After all, this is perhaps the most common question that Florida probate lawyers get from non-clients or prospective clients.

But, filing a will contest is NOT just for those that believe they were “cut out” of the estate, or dis-inherited improperly. Sometimes, there are other reasons to object to the will. What are some of the more common reasons that people object to a will, or file a will contest in Florida?

Many times, people’s inheritances are cut down, or reduced, by a later will, or an amendment to a will, which is also called a codicil. Other times, a will is re-signed, or a new will is written, with the same inheritances going out to beneficiaries, but the executor of the estate has change. In other words, sometimes a new will is signed and the beneficiaries don’t change, and their percentage of inheritance does not change, but who can administer the estate, the name of the personal representative, changes. This can be problematic for some family members because the personal representative of a Florida estate has power, authority and the ability to “run” the estate and the dealings or goings-on of the late, now deceased, Florida resident. The executor can also hire counsel and pay an estate lawyer a reasonable fee from estate funds. Many times, family members may be jealous that another family member was put in charge of the estate, to run the probate. Sometimes, loving adult children feel betrayed or let down that they were not named in the will to be the personal representative. Who actually runs the estate and runs the probate is often a hotly contested probate litigation issue in Florida, and is a very important topic to heirs, beneficiaries and family members.

Regardless, how do you file a will contest in Florida? How do you actually challenge a will?

Well, contesting a will, or challenging a will, is sometimes also referred to as objecting to probate. First, you have to have a probate proceeding. There may be a probate already “opened” in the Florida county where the deceased person resided at the time of his or her passing. If there is no probate proceeding, you have to open one up. Opening a Florida probate is accomplished by filing a petition for administration. You then have to give notice to interested persons. Interested persons are the spouse, or widow, perhaps family members and others. It depends on whether a person died with a will, or without a will, and whether there are other, prior, wills, which may be valid. Once there is a will offered for probate, to file a will contest, you need to file a petition. The petition is often called a petition to revoke probate. This is your will contest: you are challenging, or contesting, the validity of a will.

Challenging the will is a process that should be based upon the facts and the law. Wills should not be objected to just because you don’t like what the will says, or how much you do, or do not, inherit. Filing a frivolous lawsuit can get you in trouble, and it can be costly in dollar terms. So, ask yourself two questions: 1) how strong is your Florida will contest case; and 2) how strong is your estate litigation lawyer?

Many times, however, some family members wonder how a will was changed. Sometimes, family members live far away from mom or dad, and were not present when a mother or father–supposedly–changed the will, and “cut out” someone, such as a loving adult son or daughter, or when, for example, a will is signed in a hospital, on a death bed, or when dementia was advanced. That’s where the discovery process of a Florida probate lawsuit comes in. You can learn those facts, or try to discover the facts, surrounding the signing of that will or codicil which you are objecting to.

Common reasons to object to a will, or, put another way, the legal basis to challenge a will, include the following: 1) the will may not have been signed with the correct formalities of Florida law. Was the will signed at the end of the document? Was it signed in the presence of two adult witnesses? Who also signed in the presence of the person making the will? Details are important. 2) did the person who signed the will lack the ability to know what he or she was doing? Florida probate litigation law firms refer to this as “lacking testamentary capacity” or not having the capacity or ability to understand the effects of signing a will. Did the person signing the will understand what she or he was doing? Understand her or his property and money and value of their estate? Understand who their family members were? 3) finally, did someone force your mom or dad to sign a will or change a will against their wishes? Was there fraud or undue influence? These are all issues, very fact-dependent, and fact-specific, issues which your estate litigation law firm needs to find out, understand and analyze if you file a will contest. What’s your probate litigation strategy to win your case?

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