Probate Litigation | Guy S. DiMartino DC, JD, PA
June 6, 2013
Challenging a Florida Will
You feel like you were punched in the gut. Your family member recently passed away and you just learned that you were written out of the will or your share of the Estate is severely diminished. Things don’t seem right because you had a different understanding based on your loved ones statements over the years. You think you want to contest the will but how do you go about contesting a Florida will.
The Will Contest
I was disinherited and how do I contest the will, is one of the most questions Probate Litigation lawyers in Florida receive. After all, some folks call Florida “Gods Waiting Room.”
The first step in filing a will contest is seeing if there are legal grounds to contest the will. The law doesn’t allow a person to file a contest just because they were written out of a will. There must be a legal basis. Common ways to challenge or contest a will is lack of testamentary capacity, fraud, duress and undue influence.
Procedure for Challenging a Florida Will
Contesting or challenging a will, is also referred to as objecting to probate. First, there has to be a probate proceeding. There may already be a probate proceeding opened. Typically, the will is probated in the Deceased’s county of residence. So, you could go onto the courts website and search the Decedents name to see if the matter has already been submitted to probate.
If a probate matter has not yet been opened, you have to open one up. Opening a Florida probate is done by filing a petition for administration. Next, you have to provide notice to all interested people. An Interested person would be any surviving spouse, family members and others. Determining the people that need to be noticed will depend on whether the person died with a will, or without a will, and whether there were any prior wills.
Once there is a will filed in the probate court, will contest begins with a petition to revoke probate.
Challenging the will is a process that must be based upon the facts and the law. There is no place for objecting to a will because you don’t like what the will says or the amount of your inheritance. Filing a claim that has no merit in legal terms a “frivolous lawsuit” can get you in trouble, and it can be costly in dollar terms.
Over the years, Ive heard many folks ask how and why was the will changed? Often, family members live in another state and they are not involved with mom or dads daily routine. These family members were not there when a mother or father–supposedly–changed the will, and “cut out” someone, such as a daughter, son or grandchildren out of the will. Other times, these family members come to learn that their mom or dad signed a new will shortly before the they passed away or when they were suffering with significant dementia. During the will contest, the parties will be able to get and exchange information so you can learn the facts and circumstances that led to the new or changed will.
3 Ways to Challenge a Florida Will
1. Is there a problem with the formalities of the will?
This type of challenge looks at whether Florida law was followed when the will was signed. The questions that need to be asked are was the will signed at the end of the document? Was it signed in the presence of two adult witnesses, who were actually present when the will was signed?
2. Did the person signing the will, know what they were doing?
In legal speak, “did the testator have the legal capacity to make or execute the will? The questions that have to be answered when looking at this issue include: Did the testator understand what she was doing? Understand the relationship between her family members? And Understand her or his property and money and value of their estate?
3. Was the Testator forced to change or make a new will?
With this type of challenge, you have to look to fraud, duress, or undue influence? This type of challenge is very fact specific and the legal requires specific evidence in different categories to revoke a will.
There are strict time limits for challenging a Florida will so if you have questions or concerns about your loved ones will, you should discuss the issues with an Estate Litigation Lawyer.