Challenging a Will in Florida – A Brief Primer

John F Kennedy, Jr.
Source: Flickr

As medical science permits our bodies to be kept alive long after our minds work as when we were young and healthy, member of the family and others might see a chance to adjust a senior’s estate plan more to their preference. When other relative, not involved in the modification to the estate plan, discover of the modifications, they may wish to object to the will on the grounds of unnecessary influence, absence of capability, or failure of the will to comply with the requirements of law. A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the development of the will can be collected and protected for subsequent litigation. After death, the Personal Representative will issue a Notification of Administration to the heirs and recipients, which starts a 90-day period for challenging a will or the visit of the Personal Agent.

Correct execution of a will needs that the will be signed by the deceased and experienced by two witnesses, who likewise sign the will at the exact same time as the deceased. A will can be contested on the grounds that it was not correctly signed or experienced, and Florida courts have stated wills to be invalid that were not witnessed appropriately, consisting of a situation where one witness was in an adjacent space when the will was signed and not in the immediate existence of the maker of the will.

Under Florida law, a testator is needed to have psychological proficiency to make a will and to comprehend the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if absence of capacity can be shown. Usually, incompetence is developed through a previous medical diagnosis of dementia, hallucinations, Alzheimer’s, or psychosis, or through the testament of witnesses regarding the unreasonable conduct of the testator around the time the will was performed or maybe that the testator was on heavy medication. As an useful matter it is difficult to challenge a will on absence of capability grounds without a definitive medical diagnosis of a mental issue or without substantial proof of the drugs or medication that the testator was taking.

A will can be challenged on unnecessary influence grounds when the testator was forced or pushed to execute a will as an outcome of incorrect pressure put in on him or her, usually by a relative, pal, relied on advisor, or health care employee. In many cases, the excessive influencer will upset a long recognized estate strategy where the bulk of the estate was to pass to the direct descendants or other close loved ones of the decedent. Some excessive influencers are new pals or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, generally after the decedent has suffered some decrease in mental ability. In other circumstances, one child of the decedent, frequently a caregiver, will persuade the decedent to compose the other kids from the will (particularly if the other children are stepchildren). Unnecessary influencers can likewise be health care workers or live in assistants who implicitly or explicitly threaten to withhold care unless the estate plan is altered in favor of the healthcare worker. Please read the Estate of Carpenter case, which is the most essential unnecessary influence case in Florida.
Even with proof of significant pressure or cajoling from a spouse, Florida courts are reluctant to reverse bequests to a making it through partner under an undue influence claim, given the value of marital relationship in our society. However, an egregious set of facts could require striking of a bequest to a surviving partner, although the making it through partner will be entitled to the elective share (30% in Florida), missing a valid marital arrangement to the contrary.

Practically all will contests are heard by the probate department of the circuit court, where jury trials are not permitted. Florida does not recognize “no contest” clauses in wills or trusts. In any litigation in Florida over a will or trust, such a stipulation will be ignored.