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Where There Is a Will, There May Still Be a Way

Thu Nov 30, 2023 | Will Challenges |

Drafting and executing a will is an important step in the estate planning process. Do not assume, however, that the mere existence of the will settles any and all questions. Wills can be challenged and found to be invalid. If you are involved in an estate and the will seems questionable, a will contest lawyer can review your case and discuss whether you should consider challenging the will in the probate court. 

Who Can Challenge a Will?

Any interested party can challenge or “contest” a will. This typically involves the following parties: 

  • A disinherited family member who would have inherited part of the estate under intestacy laws
  • A beneficiary whose inheritance was significantly affected by a new will or an amendment to an existing will
  • A creditor whose claim is not appropriately considered in the will
  • Children or other family members who are treated differently than other family members

If you believe you may have a basis for challenging a will, you need to act quickly – you could lose all of your rights if you wait too long. A will contest lawyer will be able to assess your case and make sure your interests are protected before it is too late. 

The Four Most Common Grounds for Contesting a Will

Invalid Execution

If a will is not properly executed, it will be deemed valid under Florida law. The requirements are as follows: 

  1. The will must be in writing. It can be handwritten and the law does not require any specific language or documentation.  
  2. The will must be signed by the testator (the person who is creating the will). 
  3. The will must be signed by and in the presence of at least two witnesses. This requirement is where issues most commonly arise, especially with wills that were drafted and executed out of state. The witnesses and the testator must all sign the will in each other’s presence. While not prohibited, the witnesses should not be named beneficiaries in the will. 

Generally speaking, wills drafted or executed in other states will be recognized as valid so long as they meet these requirements. An experienced will contest lawyer can provide guidance if you have questions about whether a will has been properly executed. 

The Testator Lacked Capacity

A will may be deemed invalid if the testator was not of sound mind when it was executed. A testator will be deemed to have lacked the necessary capacity to execute the will in the following circumstances: 

  • They cannot understand what the will means or its implications
  • They do not understand the nature of their own assets or property
  • They do not understand their relationships with the beneficiaries of the will
  • They cannot understand what a will is or what it does

The fact that the testator was elderly or suffering from mental impairments does not necessarily mean that they lacked the necessary capacity. Witnesses could testify that they were perfectly lucid at the time the will was executed and fully understood the consequences of their decisions. On the other hand, someone who is suffering from advanced Alzheimer’s disease who does not recognize their beneficiaries or understand what they are inheriting would lack the necessary capacity to execute the will. 

Undue Influence

If someone benefited unfairly from the way the will or an amendment was drafted, you may be able to claim that it is the product of undue influence. To be successful, you are going to have to prove that the person who is accused of asserting undue influence: 

  1. Received some substantial benefit from the will; 
  2. Had a close and trusting relationship with the testator; and
  3. Was in a position to influence the terms of the will. 

An example of undue influence would be when an adult grandchild who, while providing in-home care for the testator, convinces them to leave them a beach house and a significant amount of cash in their will. 

Forgery or Fraud

Forged estate documents or wills that are the product of fraud are more common than many people realize. If you suspect a will is a forgery or a fraud, we recommend that you contact a will contest lawyer as soon as possible. 

What Happens if the Contest Is Successful? 

The outcome of a successful will contest will depend largely upon whether or not there was a prior will. If there was a prior will that was validly executed and free from other issues, then the court may use that will for distributing the assets of the estate. 

If there is no prior will, then the assets of the estate will be distributed according to Florida’s intestacy statutes. As a general rule, assets are distributed to the testator’s surviving spouse, surviving parents, surviving children, or surviving children under Florida law. In other words, grandchildren, first cousins, and other more distant relatives generally do not inherit under intestate succession. 

As a result, it is important to understand what the outcome may be before you decide to contest a will. A will contest lawyer will be able to assess the validity of your case and explain what you can expect as an outcome before you decide to move forward. 

What About “No Contest” Clauses? 

“No contest” clauses – language inserted into a will that states the will cannot be challenged – are invalid and unenforceable under Florida law. You may see one in wills that were drafted in another state where these clauses are enforceable or the drafter used a form document that included this provision. These clauses are sometimes inserted knowing that they are enforceable but in the hopes that they will discourage any challenges. Whatever the reasoning, you can still contest the will even if it includes a “no contest” clause. 

Questions About a Will? Contact Ellis Law Group Today

Contesting a will is a big step that can carry significant consequences. Before proceeding, you should discuss your case with a will contest lawyer from Ellis Law Group. They can give you the information you need so that you can make the right decision. Contact us today by calling 561-910-7500 to schedule a consultation.