The purpose of a Last Will and Testament is to provide an amount of certainty to loved ones left behind after the Testator passes away. Typically, with a will, intestate proceedings can be avoided and the decedent’s estate is fairly distributed according to his or her last wishes. Unfortunately, that is not always the case.
In situations where a will is believed not to properly reflect the wishes of the Testator, there are ways his or her loved ones can contest the will. However, successfully contesting a will in Florida is difficult and the expertise of a Miami probate attorney is necessary.
Standing and Time Limits
Before someone tries to challenge a will, they must first determine whether they have standing. A person or entity has standing if they will be personally affected by the outcome of the will. So, an intestate heir or beneficiary named in the decedent’s prior will has standing, as well as a bank or charity named as a beneficiary or fiduciary named in the prior will may have standing.
Those intending to contest a will also need to consider the time limits regulating such legal action. According to Florida probate law, those with standing and legal grounds to challenge a will have the right to file a will contest within three months after receiving notification that the will was submitted to the appropriate probate court. Once the administration of the estate starts, the time limit to file a will contest is 90 days.
Legal Grounds for a Will Contest
In addition to having standing and being timely, those contesting a will in Florida must have legal grounds. There are four possible grounds to challenge a will.
- Will Execution Not In Accordance With Florida Probate Law
According to Florida probate law, a last will and testament is only valid if the decedent signed a written will in the presence of two witnesses who also sign the will. Finally, all the signatures have to be authenticated by a notary. If these requirements are not met, the will can be challenged and likely be invalidated.
- Testator Lacked Testamentary Capacity To Sign the Will
A testator has testamentary capacity if he or she had the mental capacity to fully understand the value of the assets encompassed by a will and the impact of signing it. To prove a lack of testamentary capacity, the party challenging the will have to provide medical or other documents pointing to the decreased mental capacity of the testator during the execution and signing of the will.
- Establishment of the Will by Testator Under Duress
If the decedent was unduly influenced into making and/or signing the will, it may be invalidated. Proving duress or undue influence is very difficult; things like spoken threats and verbal abuse directed toward the testator are often not regarded by probate courts as strong enough evidence. More effective evidence include the testator being isolated from family and friends by the undue influencer (often the primary beneficiary of the contested will) or the undue influencer safekeeping the decedent’s original will and arranging the terms and paying for the new will.
- Will Was Procured by Fraud
If the Testator was tricked into signing a will, that will’s establishment was fraudulent, and the will itself is invalid. In cases where fraud is alleged, the witnesses of the will’s signing are often asked to testify in probate court. If their testimonies are off and fail to line up, the will may be determined as procured by fraud and invalidated.
When contesting a will in Florida and in any other state, it is the challenging party who must provide evidence that a will is invalid. It is difficult to prove the above legal grounds and often involves a complex and lengthy process.
However, if you truly believe a loved one’s last will and testament does not reflect their last wishes, consult with an experienced Miami probate attorney. At Graham Legal, our attorneys are committed to using their expertise in Florida probate law to defend the rights of our clients in probate court and work towards the most favorable outcome.
Call us today for a free consultation.