Frequently Asked Questions

Am I entitled to a jury trial?
What type of evidence is used in a Will contest?
What are my appellate rights if I lose a Will contest?
Can I testify about conversations I had with the Decedent?
What types of fee arrangements are available?
May I contest a Will if it has a clause prohibiting a beneficiary from challenging the Will?
May I contest a Will before the death of the maker (i.e. Testator) of the Will?

1. Am I entitled to a jury trial?

As a general rule, matters litigated in a probate Court, such as a Will contest, do not entitle the litigants to a jury trial. However, certain matters in which a claim for money damages is being made can be tried before a jury. An example would be a claim for monetary damages as a result of a breach of fiduciary duty by a Personal Representative, Trustee or Guardian.

2. What type of evidence is used in a Will contest?

Although every case is unique, in addition to the testimony of the Witnesses, it is common to use family photographs or videotapes, correspondence, holiday or greeting cards, medical records, prior estate planning documents, financial records and the files of the attorney who prepared the Will being litigated.

3. What are my appellate rights if I lose a Will contest?

Will contests are tried before a judge in the Circuit Court where the Estate is being probated. Appeals are filed in the Court of Appeals covering the Circuit Court where the trial was held. It is difficult to overturn a trial Court’s findings of fact, such as whether the Decedent had the capacity to make a Will.

4. Can I testify about conversations I had with the Decedent?

On July 1, 2005, Florida Statute 90.602 (i.e. the “Dead Man’s Statute”) was repealed and replaced with Florida Statute 90.804, as an exception to the hearsay rule. As a result, parties to a Will contest may now testify about communications with the Decedent.

5. What types of fee arrangements are available?

Attorney fees may be based on a contingent fee, which provides that fees are paid out of any recovery or on an hourly basis. Additionally, a combination of the two may also be used. The decision is made on a case-by-case basis.

6. May I contest a Will if it has a clause prohibiting a beneficiary from challenging the Will?

Pursuant to Florida Statute 732.517, an “in terrorem” clause is unenforceable and cannot bar a Will contest. Pursuant to Florida Statute 737.207, the same rule applies to Trusts.

7. May I contest a Will before the death of the maker (i.e. Testator) of the Will?

An action to challenge the validity of a Will cannot be instituted before the death of the Testator. A Trust may not be contested until it is irrevocable. However, as of July 1, 2007, in certain situations involving Guardianships, a Trust may be challenged while the maker (i.e. Grantor) of the Trust is legally incapacitated.