3 Questions to Ask Before Contesting a Will in Florida
It is not unusual for someone to be shocked or angered when they are excluded from a loved one’s will. For many people in this situation, their initial response may be to try and contest the will. But will contests are rarely actually filed in Florida–and even more rarely succeed. With that in mind, here are three questions a person should consider before taking steps to actually contest a will in Florida.
- Do I Actually Have Standing to Contest the Will?
Only individuals with legal standing can actually object to or contest a will during the Florida probate process. Not every family member or friend of the deceased can meet this requirement. In general, standing is limited to the following persons:
- any beneficiary named in the will being contested;
- any beneficiary named in a prior will signed by the deceased;
- any person who would inherit from the estate under Florida’s intestacy laws.
Intestacy laws cover situations where a person dies and there is no valid will. The heirs of an intestate estate are usually limited to the deceased individual’s next of kin, such as their surviving spouse or children. Friends, unmarried partners, and distant relatives typically will not qualify as intestate heirs for purposes of establishing standing to contest the will.
- Do I Have Valid Grounds for Contesting the Will?
You cannot contest a will simply because you disagree with its contents. Nor will a Florida probate court accept an argument like, “The deceased orally promised to leave me certain property but did not.” There are only a few specific grounds for contesting a will in Florida, which include:
- The will was not properly executed, i.e., it was not in writing and signed by the deceased in the presence of at least two witnesses;
- The person making the will lacked the legal capacity to do so, i.e., they were “not of sound mind” at the moment they signed the will;
- A person who benefits from the will exercised “undue influence” over the deceased to procure its execution; or
- The will was procured by fraud, either in the inducement or the execution.
Remember, the burden of proof is on the person contesting the will to prove any of the grounds described above.
- Will the Outcome Matter?
Another consideration is what will happen if the will contest does succeed. Depending on the specific facts of a case, there are a few possibilities:
- The probate court invalidates part of the will (or an amendment to the will), leaving the remainder intact
- The probate court admits a previously signed will; or
- The probate court finds there is no valid will, in which case the estate passes under Florida intestacy laws.
Depending on which outcome prevails, it may not make much difference for the person who filed the contest in the first place. Another thing to consider is that not all of a person’s property necessarily passed under their will. For example, assets such as retirement accounts or life insurance policies are usually paid to named beneficiaries outside of probate.
Speak with a Florida Estate Litigation Attorney Today
If you have questions about the process for contesting a will, or you are currently involved in such a dispute, it is important to work with a qualified Pompano Beach estate and trust litigation lawyer. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.