1-561-514-0900 FREE CONSULTATION

Contesting the Will

Contesting the Will in Florida Probate

Under Florida law an action contesting the validity of the last will and testament of a decedent may be brought after the death of the testator. There are many grounds they can be asserted in effort to undo a will, thereby invoking the doctrine of dependent relative revocation to seek a prior will to be admitted to probate or, alternatively, intestacy (without a will and thus by operation of law under Florida Statutes §§ 732.102. 732.103).

When looking at a will that one plans on contesting, the initial inquiry should be whether or not the requisite formalities were adhered to in creating the will. Pursuant to Florida Statute § 732.502 there are certain requirements which must be followed in order to have a valid will. For instance, a will must be in writing, signed by the testator or by another at the testator’s direction, in the presence of two witnesses. In the event that these formalities are not complied with, the will can be contested on technical grounds. If the will appears valid “on its face” (done in compliance with Florida Statute § 732.502), another ground to contest the will must be alleged if the facts warrant.

Florida Statute § 732.501 mandates the testator be of sound mind. The term “sound mind” means the ability of a testator to mentally understand in a general way the nature and extent of property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as it is executed. In re Bailey’s Estate, 122 So. 2d 243, 245 (Fla. 2d DCA 1960).

Competency is generally presumed, placing the burden of proving lack of capacity on the contestant of the will. Florida Statute § 733.107.

In addition to incompetency, insane delusion, undue influence, fraud, and duress, are all common grounds to contest a will. Florida Statute § 732.5165 allows for a will contest on the grounds of fraud, mistake, and undue influence, but it is noteworthy that the fraud must be played with particularity. This can be difficult in the case where a contestant had an estranged relationship with the testator over the final months or years of his or her life. As stated by the Second District Court of Appeal in Williamson v. Kirby, 379 So. 2d 693, 697 (Fla. 2d DCA 1980)

[w]hile our courts must be vigilant to protect the aging against any form of overreaching, simply because an elderly person chooses to give her property to a friend instead of her relatives does not warrant cancelling the deed where as here there is no real proof of undue influence. Apropos to our conclusion, we refer to our opinion in Heasley v. Evans, 104 So.2d 854 (Fla.2d DCA 1958). That case involved a will rather than a deed, but the following quotation illustrates our understanding of undue influence.

Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence.

104 So.2d at 857.

If you have concerns about the validity of a decedent’s last will and testament, it may be in your interest to contact an experienced probate litigation attorney.

Under Florida law, the procedure of contesting a will, or filing a will challenge, is unique and requires immediate action.

Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by this subsection, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.

What happens if a person who inherited under a prior will is not given notice of a petition for administration of a subsequent will that is admitted to probate? In that event, they may petition for revocation of probate pursuant to Fla. Stat. 733.109(1), which provides:

A proceeding to revoke the probate of a will shall be brought in the court having jurisdiction over the administration. Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.

It is important for lineal descendants of decedents, as well as close friends and family, to pay attention to any documents sent to them regarding the decedent’s estate, and to file appropriate pleadings so as to protect their ability to object to a last will they do not think is valid. See Feather v. Sanko, 390 So. 2d 746 (Fla. 5th DCA 1980) (reversing trial court judgment challenging admission of will to probate based upon daughter’s pleading being sufficient to require proponent of will to give her notice of hearing to admit the will to probate and trial court error in failing to grant daughter’s motion for extension of time to file pleadings). As such, it is wise to consult with experienced probate counsel after the death of a loved one if there are any questions or concerns about their last will.

What if the person had prior wills where you were listed in the will, or, perhaps dis-inherited? Well, ask your Florida will lawyer about the doctrine of dependent relative revocation.

How to Revoke Probate in Florida >

Punitive Damages in Trust Cases >

  • CNN
  • USA Today
  • 25 WPBF
  • CBS News
  • Local 10
  • The Wall Street Journal
  • AARP
  • Houston Chronicle
  • AV Peer Review Rated
  • 2014 Top Ranked Law Firms
  • Lexis Nexis
  • Yahoo