Properly drafted by an experienced Florida estate planning attorney, wills are a bit like Ivory® soap, 99.44 percent of the time, they sail through probate without difficulty. While rare, there are still situations in which a will can be attacked or contested. What proof is required to contest a Florida will?
Usual Grounds for Contesting a Will
There are a number of potential reasons or “grounds” for contesting a will. They include:
- Improper execution of the will – Fla. Stat. § 732.502 generally requires that the testator (the person who is making the will) sign the will (at the end), and that the will also be signed by two witnesses who do so in the testator’s presence, and in the presence of each other. If these formalities are not followed, the will can be contested. One should also note that, in many cases, if this sort of irregularity exists, the will is likely to be accepted for probate by the clerk of the circuit court in the first instance.
- Lack of appropriate “capacity” on the part of the testator – The person signing the will must have sufficient mental competency to understand the nature of his or her assets, and the persons who will receive property under the terms of the will. If, for example, the person suffered from extreme dementia or another significant mental condition at the time when the will was signed, the will could usually be invalidated.
- Insane delusion – If the testator, against all reasonable evidence to the contrary, believed something to be true (or false) and executed a will (or changed an existing will), based on that delusion, the will (or the change in the will) could be invalidated. For example, the testator may have told numerous witnesses that he or she had been abandoned by a family member and that, based on the abandonment, the testator had decided to disinherit the family member. If, in truth, the loved one had been quite dutiful, a court could say that was sufficient grounds to invalidate the will.
- Fraud – This can occur where one person causes another to make or change a will based on misrepresentations. For example, if person “A” told person “B,” who had poor vision, that a paper document was merely a power of attorney when, in fact, it was a will leaving B the bulk of A’s estate, the will could be contested on the basis of fraud.
- Undue influence – Somewhat similarly, if person “A” befriended person “B” during the last few months of B’s life and convinced B to make a will (or change an existing one) so as to leave significant property interests to A, the will can sometimes be set aside.
Burden of Proof is on the Individual Contesting the Will
The person contesting a will has the burden of proving that sufficient grounds exist to justify setting it aside. Where the contesting party claims the will was signed (or modified) due to undue influence, the contesting party must generally show that the person who exercised undue influence:
- Was a substantial beneficiary,
- Who occupied a confidential relationship, and
- Was active in procuring the will and trust.
Concerned About the Validity of a Loved One’s Will?
If a loved one has recently died and you have reason to be suspicious about his or her last will and testament, you should discuss the matter with an experienced, caring attorney. At the Jacksonville, FL law firm of Beller & Bustamante, P.L., our lawyers have in-depth knowledge of Florida and federal probate law and the probate court system. When a loved one dies, the pain and loss are enormous. Matters can be worse when your loved one’s will was signed or drafted under suspicious circumstances. If you have questions or concerns about a loved one’s will, you can easily schedule an initial consultation. Contact Beller & Bustamante, P.L. online or call us at (904) 288-4414 today.