A will functions as its name suggests. The document expresses how the maker, called the testator or testatrix, wants property to be handled and distributed at death. In some cases, the purported will may not reflect a person’s intent. If you believe a loved one’s will is not legitimate or doesn’t capture the decedent’s wishes, you may challenge it in a legal proceeding.
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What Does It Mean to Contest a Will?
In a will contest, you file a petition in a probate proceeding to have the will or portions of it declared invalid. The ultimate aim is to have the decedent’s property distributed in a way other than the decedent’s wishes as expressed in the will.
Therefore, as with any legal proceeding, you must have “standing” to contest the will. A person with standing has a legal interest that the will under contest may affect. These include people, normally family members, who would inherit from the decedent had there been no will. Florida intestacy laws determine the order of priority for these heirs-at-law. For example, parents would not inherit under the intestacy law unless neither a spouse nor children survived the decedent. Also, you may have standing if the decedent named you as a beneficiary under a prior will.
Common Reasons to Contest a Will
The person making the will must sign it in the presence of two witnesses. These persons then must sign under oath that the testator or testatrix in fact signed the will. Without these formalities, the attempted will becomes invalid. Often, defects in the will execution may appear on the face of the will, and a probate court will not accept it.
If the will contains the formalities required by law, you may still attack it on one or more of these grounds:
Undue Influence occurs when the testator did not act voluntarily in making or signing the will. The pressure placed upon the testator may come from, for example, threats of taking the testator’s property or removing him or her from the home or duress. Undue influence may take the form of coercion or duress.
Fraud arises from either some intentional representation by someone benefiting from the will that induces the favorable treatment by the testator. Also, you might allege that the testator was tricked into signing something that did not reflect his or her wishes and intent.
Incapacity to make a will means that the testator lacked the ability to appreciate that he or she was deciding who would inherit property at death. That the testator did not understand or know the identity or general value of the property or could not recall important or current dates, times or events may also illustrate the lack of testamentary capacity.
The Procedure for Challenging a Will
Rather than filing a separate lawsuit, you contest the will by filing in the probate proceeding a “petition for revocation of probate.” You must file the petition within three months after the personal representative sends a “Notice of Administration.” This document provides information such as the case name, the date of the will and codicils (amendments) to it and the name of the lawyer representing the personal representative. If you miss the deadline, you will lose your right to contest the will. Florida probate law does not allow the personal representative to give you time beyond the deadline to file the petition.
The Outcomes and Risks of Contesting a Will
If a court invalidates the will in its entirety, the personal representative will have to distribute the decedent’s property as if the testator did not make a will. This triggers application of the intestacy statute, in which the heirs are pre-determined by the legislature. Those beneficiaries named in the will do not take anything from the estate, unless they are covered by the intestacy statute. Excluded beneficiaries may include a friend of the decedent or a charitable, religious or other nonprofit organization named in the will. A court could invalidate just part of the will and decide to allow the personal representative to follow the rest of the will.
Florida law does not allow “ad terrorem” clauses in wills. In these provisions, the testator attempts to prevent any named beneficiary from contesting the will by not allowing any such contestant to take under the will.
Even without an “ad terrorem” clause, will contests carry the risks of considerable amounts of money spent on an uncertain outcome. Expenses include legal fees, filing fees and trial preparation costs.
Contact us if you need assistance or advice about contesting a will in Florida.
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