Florida Will Contest

One of the most common question asked of our Fort Lauderdale probate litigation attorneys is, “How do I file a Florida will contest?”

Contesting a will in Florida usually involves family members, former beneficiaries and disinherited heirs. However, it’s not just people who were cut out of the will, but also those whose inheritances have been reduced as a result of a codicil, which is an amendment to a will.

At The Ansara Law Firm, we know a Florida will contest is an adversary proceeding, noted expressly in Florida Probate Rule 5.025. That means the burden of production and the burden of proof may be somewhat different, and are governed by the rules of civil procedure.

Similar to a “complaint” that would be filed in a civil case, a petition for administration in probate is a short, plain statement of relief sought, the grounds on which that relief is sought and jurisdiction of the court.

The first question that arises when determining whether to contest a will in Fort Lauderdale or elsewhere in Florida is to determine whether the will was properly executed. It is a great deal easier to challenge a will for technical reasons, rather than try to assert undue influence or lack of capacity.

Proper execution and qualification of a will are controlled by Florida statute – specifically, F.S. 732.502. To make a will valid, the testator (person who made the will); must be at least 18-years-old and of sound mind and the will must:

• Be in writing;
• Signed by the testator (or by someone else at the direction of the testator);
• Have acknowledgement that testator signed in the presence of two witnesses;
• Witnesses need to sign in the presence of both each other and the testator.

This last provision is the one that is most commonly done improperly. One such case was decided recently by Florida’s 5th District Court of Appeal. In Price v. Abate, the court ruled that witnesses must actually be in one another’s presence – not merely in the vicinity of each other.

In some instances, the will includes something called a self-proof affidavit. As outlined in F.S. 732.503, it’s an oath indicating the testator and witnesses signed the document in each other’s presence and that oath is taken in the presence of a notary public. In cases where the contested will contained a self-proof affidavit, it can be very difficult to challenge.

If not on technical grounds of improper execution, a Florida will can be challenged by asserting undue influence. This is an assertion that the testator was controlled by the pressure, duress or fraudulent influence of someone else when the will was drafted/ signed, and it wasn’t the product of a voluntary effort that reflected testator’s intentions.

To successfully contest a will for undue influence, the person who is challenging it bears the burden of proof to establish that defendant:

• Was a substantial beneficiary under the will;
• Had a confidential relationship or fiduciary duty to decedent;
• Was in active procurement of the will.

The first two elements are usually the easiest to prove. Where it gets complex is in proving active procurement. The Florida Supreme Court in the 1971 case of In Re Estate of Carpenter set forth seven factors (nonexclusive) that help determine whether there was active procurement. These include elements like:

• Beneficiary had knowledge of what the will said before it was executed;
• Beneficiary recommended an attorney to draw the will;
• Beneficiary was present when testator expressed a desire to change/ make the will;
• Witnesses were secured by beneficiary.

Florida law – specifically F.S. 732.5165 – prohibits the execution of wills that were procured by fraud, duress, mistake or undue influence.

To contest a will by asserting fraud in Fort Lauderdale or the surrounding area, plaintiffs must prove:

• Fraudulent representations of key facts to testator;
• Knowledge by defendant that those representations were not true;
• Intention that those representations would be acted upon;
• Injury resulted.

In most cases, it’s asserted that either the testator was told the will he/ she signed was something else, or is intentionally mislead by a material fact that caused testator to make a different decision that he/ she would otherwise.

Duress, which is less common, involves some coercion or threat of physical harm or actual harm against the testator that caused him/ her to sign the will a certain way.

A more common challenge in these cases is for lack of capacity. Testators must be deemed “of sound mind,” as required in F.S. 732.501. The 1953 Florida Supreme Court decision for In re Wilmott’s Estate outlined that testators must generally be able to understand:

• Nature/ extent of property;
• Relationship of the heirs;
• The practical effect of the will.

Still, the testator is generally presumed to be of sound mind, unless the person challenging the will can show otherwise.

If one can prove lack of capacity, the entire will is considered invalid.

Deadlines for will contests under Florida statute give a claimant are tight. Once the court grants a notice of administration in a Florida will contest, the claimant has just 90 days (three months) to weigh the legal options, gather the supporting documents, hire a lawyer and file a formal lawsuit contesting the will.

In cases where the formal notice of administration is received prior to the will being admitted to probate, claimant has just 20 days to do all this.

If you want to contest a will in Florida, our dedicated probate attorneys serving Fort Lauderdale can help.

Contact the Probate Litigation Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.