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Contesting a Will in Florida

In general there are four grounds to challenge the validity of your Last Will & Testament:

I. Not Signed As Required by State Law: In Florida, your Will must be signed by you, the testator, or another person at the direction of and in the presence of you. You Will must be signed at the end of the document in the presence of at least two attesting witnesses. The witnesses must sign in your presence and in the presence of each other.

Any Will may be “self-proved.” This is done either at the time of its execution or at any later date by the acknowledgement of the will by the testator and the affidavits of the witnesses, made before a notary, and evidenced by the notary’s certificate attached to or following the will. A self proved will can be admitted to probate court without the testimony of the witnesses to the will. (When a will that isn’t self proved is submitted to the probate court, the court will require testimony from witnesses, or other proof, to establish that the will is what it claims to be.)

II. Lacking Capacity. The capacity to make a Will means that you understand (a) your assets, (b) your family relationships, and (c) the legal effect of signing the Will. (In re Wilmott’s Estate, 66 So.2d 465 (Fla. 1953)). Florida law has created a presumption that the testator had the necessary capacity to execute the will. Thus, a person challenging the will has the burden of proving that the testator lacked testamentary capacity. Simply because a person has dementia, does not necessarily mean that they lacked testamentary capacity when the will was executed. Many people that suffer from mental impairments have "good days and bad days." In Florida, a person who normally lacks testamentary capacity can execute a will during a "lucid interval." A lucid interval may be applicable even when a person has been adjudicated by a court to lack mental capacity. The person challenging a Will based on lack of testamentary capacity has a heavy burden. The challenger is allowed to offer evidence showing the decedent’s mental condition before and after signing the Will and evidence that the mental disability was permanent will create a presumption that it continued.

III. Unduly Influenced. Your Will could be challenged by someone who believes you were unduly influenced into signing it. As people age and become weaker both physically and mentally, others may exert influence over decisions, including how to plan their estate. Undue influence can also be exerted on the young and the not so young. In the context of a will contest, undue influence means more than just nagging or verbal threats. It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.

The person challenging the Will for undue influence has the burden to establish the presumption of undue influence, which can be met by showing that the undue influencer:

1. is a substantial beneficiary under the Will

2. occupied a confidential relationship to the decedent, and

3. was “active” in procuring the Will

Each of these elements has a body of case law trying to interpret what is meant. The first two prongs are considerably easier than the third to establish.

IV. Procured by Fraud. A will that is signed by someone who thinks they are signing some other type of document or a document with different provisions is one that is procured by fraud. Fraud defeats the testator’s wishes through deceit. There are four (4) general elements of fraud:

1. False representations of material facts to the testator

2. Knowledge by the perpetrator that the representations are false

3. Intent that the representations be acted upon

4. Resulting injury

There are two primary types of fraud:

1. Fraud in the Execution – the testator was told the Will he signed was something other than a Will

2. Fraud in the Inducement – the testator is intentionally misled by a material fact which caused the testator to make a different devise than he would otherwise have made.

Planning Tip: While it is easy to assume that a Will that was signed in an attorney’s office is valid, this is not always the case. Attorneys who do not specialize in estate planning may be unfamiliar with the formalities required to make a Will legally valid. Therefore, it is important for you to work with an attorney who is familiar with estate planning laws. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family.

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