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Contesting a Will: What You Need to Know

Probate is the legal process of executing a person’s will and distributing their assets to beneficiaries. A will ensures an estate is handled according to your loved one’s last wishes. However, family members may disagree about the will’s creation, validity, and execution. In such cases, a relative or beneficiary may challenge (also called contest) the will in probate court. Learn more about the process of contesting a will below. 

Who Can Challenge a Will in Florida?

Anyone with a vested interest in the outcome of the will can contest it. This could be someone currently listed as a beneficiary in the will, someone included in a previous version, or someone entitled to the decedent’s assets following Florida’s intestate laws.

Reasons for Contesting a Will 

Contesting a will challenges its validity. To do this, you must prove the will was invalid when written. Here are the reasons a court may consider a will to be invalid:

 Invalid Creation 

A will must meet the requirements in Florida Statute 732.502. It needs to be signed by the testator and two witnesses (preferably two people not listed as beneficiaries in the will). The decedent must have been at least 18 years old when it was created. It must also be a written, typed document, not a handwritten note or created orally. 

Undue Influence or Threat

Undue influence is when someone tries to coerce or threaten the testator (the person creating the will) into drafting a will that specifically benefits them. It’s one of the most common reasons to challenge a will. 

Wills must be made freely and willfully. The will can be challenged if you prove that someone threatened to harm the testator or their property.

Incapacity 

The testator should have been of sound mind and complete mental capacity when they drafted the will. To challenge a will based on incapacity, you’ll need to provide evidence that the decedent suffered from a persistent and ongoing condition that affected their mental capabilities, such as dementia. 

Wrongfully Removed 

If you or a family member believe you were unfairly cut out of a will, you could challenge it under specific circumstances. You would need to argue that the decedent intended to have you in their will but removed you by mistake or under undue influence.

How to Contest a Will in Florida 

A will can be challenged within 90 days of the Notice of Administration, which marks the official beginning of the probate process. To contest a will, a formal petition must be filed with the probate court overseeing the case. The petition should clearly state whether the will should be revoked, modified, or invalidated, along with why the will is being challenged. After the estate is notified, a judge will schedule a hearing to determine the will’s validity.

Outcomes of Challenging a Will 

The goal of challenging a will is to prove that a previously legal will is invalid. If the will is challenged successfully, it will be as if the decedent never drafted a will at all. Assets will then be distributed to beneficiaries based on Florida’s intestate laws, which provide a line of succession that gives assets to the surviving spouse, then children, then the decedent’s parents, then siblings and their children, then other blood relatives, and—lastly—the state.

If only part of the will is deemed invalid, those parts will not be enforced, but the rest of the document will be executed according to what’s stated in the will. 

Peppler Law, P.A.: Helping You Navigate the Complexities of Probate 

Challenging a will can be a difficult and emotional process. However, it may be necessary to protect your family’s inheritance. Attorney Thomas R. Peppler provides the guidance you need to contest a will successfully. To schedule a consultation, please contact our office at 407-792-2733.  We serve residents of Oviedo and throughout Central Florida. 

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