Justia Lawyer Rating
Super Lawyers

Florida Will Contest

When someone dies in Florida, the courts and legislature’s goals are to distribute the decedent’s estate according to the decedent’s wishes.  This often means that the court wants to distribute the estate to the decedent’s beneficiaries according to the Will.  However, a beneficiary can challenge a decedent's Will in court for several reasons.  These challenges to a decedent's will are known as a Will contests in Florida.

When a Will is contested in Florida, the proceeding is an adversary proceeding according to the Rules of Florida Probate 5.025.  The person challenging a Will files a lawsuit in the probate court.  Florida Statute 732.518 makes it clear that one is not permitted to challenge the Will of someone who is alive. A Will contest can only occur after an individual dies according to Florida Statute 732.518.

Once the Florida probate court accepts the will, the court can then appoint a personal representative to the estate.  The personal representative has many duties.  He or she must send a Notice of Administration to all beneficiaries as well as a notice to creditors.  Once a claimant receives a Notice of Administration, he or she has 90 days to file a lawsuit to contest the Will.

When is a Will Contested in Florida?

There are several reasons a person can contest a Will in Florida probate court.  One of the most common reasons for bringing a Will contest is when the decedent did not properly execute the Will.  Florida has very specific rules that regulate Wills and Trusts.

Proper Execution of a Will in Florida

If the decedent made a will in Florida and did not execute the document correctly, then the probate court will administer the estate according to a former Will or by intestate succession.    Florida will administer an estate by intestate succession when a person dies without a Will according to the Florida probate code and Florida Statutes.  This means only certain family members will receive the estate, and they will receive only a certain percentage of the estate which is defined under the Florida Statutes.

Florida Statute 732.502 is one of the statutes that declares some of the rules necessary to execute a Will.

  • The testator, or the person that creates the Will, must sign at the end of the Will
  • The document or will must be in writing.  
  • Two witnesses must also sign the Will in the presence of each other and the testator (the person who creates the will).  

While the signature requirement seems rather minor, Florida courts declared many Wills invalid for failing to have a signature.

Proper Testamentary Capacity in Florida

Second, the person making the Will in Florida must be of sound mind and 18 years of age or older.  Further, this person must have a present intent to make the Will.   So what exactly does “sound mind” mean?  The Florida Supreme Court has defined this term to mean a person’s ability to understand the nature and extent of his property, the relationship of those who would become beneficiaries to the estate, and the practical effect of the Will.

The mental capacity needed to make a Will in Florida is a lower standard than capacity in other legal fields.  Probate courts presume the person making the Will has the proper capacity.  Further, a challenger must prove the testator did not have capacity on the day he or she signed the Will.  This means a court could find a testator did not have capacity on the day before or after the testator signed the Will, but this person did have capacity when he or she signed the Will.

A challenger must show the testator’s mental incapacity was continuous, or that the testator suffered from an insane delusion.  An insane delusion is when a person has a fixed false belief without a hypothesis, and this belief has no foundation in reality.  For example, if a person creates a Will under the influence of a strong medication, where they no longer have a foundation in reality, then a court is likely to find the Will invalid.

Undue Influence in Florida

A person who is challenging a Will in Florida may also bring a lawsuit for undue influence. Undue influence in Florida is when a person manipulates another person into creating a Will and leaving the estate to him or her.  For example, an elderly person named James hires a new gardener.  The gardener and James become friends after a month. The gardener manipulates James into leaving his entire estate to the gardener.  James’s old Will left everything to his two daughters that will now become disinherited under the new Will. The gardener may have exercised undue influence over James in this instance

The person claiming undue influence in Florida has the burden of establishing the presumption of undue influence. The challenger to a will can accomplish this by showing the influencer is a substantial beneficiary under the Will, occupied a confidential relationship to the decedent, and was active in procuring the Will.

A court will consider the influencer to be active in the procurement looking at several factors.  Factors of active procurement may be if the influencer was present at the execution or at times when the testator expressed a desire to make a Will.  Another factor may be if the influencer recommended the Will, or if he or she knew the contents of the Will before the testator executed the document.  Still additional factors the court looks at are if the beneficiary secured the witnesses, possessed the Will, or gave instructions to the attorney.  These factors become important, because if enough of the factors of undue influence are present, the presumption regarding undue influence shifts to the other party.

If you need help with the Probate of a family member who resided in Florida or feels that there is something wrong with the way a Florida Probate is being handled, or your assets have not been dealt with fairly, CONTACT our Jacksonville Florida Probate Lawyers by email or call us at 904-685-1200 to discuss your situation today.

Client Reviews
After years of trying to protect my assets from creditors, I was shocked to find out that my assets were unprotected in ways I had never considered. Not only had I placed my assets at risk from my mother's creditors, but I had placed my assets at risk from other family members who were intent on manipulation. When my mother died, I discovered that a family member had changed my mother's estate planning documents. Mr. Goldman and his team were able to explain what went wrong and successfully defended my position in court. During the case, I learned that I could have had much better protection from family and creditors, thus avoiding years of litigation and undue familial stress. When it comes to protecting your assets and your family, I would highly recommend hiring Mr. Goldman and his team. Bill H.
As a real estate agent, I have been involved with many property transactions where I needed a probate attorney to help facilitate the transaction. I have used the services of Mr. Goldman and his staff over the last several years and continue to use them on a regular basis. His office has been able to navigate the court system and help estates sell their property quickly and efficiently. In addition, Mr. Goldman can help real estate investors structure trusts to protect their assets from creditors. Michael Starling
She’ll help you save money and time! I spoke to Holli today to help with a traffic violation and she was nothing less than amazing! She replied to all of my emails in a timely manner and insured that i was well aware of all of my options. I will be reccomending Holli to anyone i know that needs legal care! Thank you so much for having patience and taking the time to genuinely help me. The best part about it is that her advice saved me a ton of money because i spoke to a different lawyer from another law firm and they tried to make me pay $1250 without even asking about my case. Thanks again Holli, you’re amazing! Theara
Result better then we could have asked for. Holli Dean Is the Best Lawyer you could ask for. She will go above and beyond for you case, She Cares about your children and their safety . She has this calm about her that even when you are a nervous wreck makes you feel better. She is one and a million and we are so beyond blessed that she has be here for us. I wouldn't trust anyone but Holli. Dale
This office is fantastic. I was faced with a horrible situation and this office helped to put an end to the untenable situation. Ms. Kendal Schoepfer was always available before, during, and after office hours to answer any questions that I had. I highly recommend this law office to all. Tisha Brown
Kendal was an amazing answer to a difficult time. Highly recommend her!!! Dana Ramsey