Last Update: 8/9/20
Florida’s sunny climate and beautiful coastlines have invited many retirees here over the years. People come to live out their lives in our beautiful state, with extended family living all over the country. As a result, when these people pass away, Florida courts are often the battlefield over many different kinds of challenges to Last Wills and Testaments of loved ones who have died leaving surprised, shocked, and hurt surviving family members who do not believe the Will to be accurate or valid.
Challenging a Will Under Florida Law: First Question Is About You, Not the Will
Under Florida law, the last wishes of a decedent are given the utmost respect and it’s not easy to challenge someone’s Will. The first hurdle placed by Florida statutes on a will contest lawsuit is the determination of who is seeking to challenge the will. Not everyone gets to do this.
Legally, this hurdle is called proving up one’s “standing” to sue. The Florida Legislature has limited “standing” in will contests to “Interested Persons” which have then been specifically defined by law.
Florida Statute 733.109(1) states “Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.”
Florida Statute 731.201(23) then defines an “interested person” as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.”
Will Contests in Florida: Second Question is Do You Have a Legal Basis to Challenge Someone’s Will?
Just because you are shocked at the contents of a loved one’s Will does not mean that a Florida Court will allow you to fight to change the distribution of the loved one’s property and estate.
Even if your deceased parent, aunt, uncle, or grandmother, for example, told you for many years that you would receive the book signed by Abraham Lincoln and yet, the Will doesn’t provide for you to receive this treasure, it does not mean that those promises – and your testimony about those promises – will be enough to right the wrong.
There are only certain legal grounds that Florida law recognizes as reasons to change someone’s Last Will and Testament. Why? Florida law respects someone’s last wishes and seeks to protect Wills from change.
Here are legally valid bases for contesting a will in Florida:
- Fraud
- Duress
- Undue Influence
- Lack of Testamentary Capacity
- Procedural Errors in the Will Itself (Invalid).
(These will be discussed in more detail in future posts. Each of these grounds is complicated and strictly regulated by Florida probate law.)
Third Question: Are You Too Late?
Florida law limits the amount of time you have to file a challenge to a Will. Under Florida Statute 733.212, all heirs and beneficiaries are to be served with an official “Notice of Administration” of the Last Will and Testament. This Notice begins a 90-day ticker for contesting the Will. After 90 days, you will be too late and time-barred.
Specficially, Florida Statute 733.212(3) states:
(3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.
What Do You Do Now?
If you believe there was wrongdoing surrounding the creation of a loved ones will or you receive a Notice of Administration and have any concerns about the disposition of property pursuant to a Last Will and Testament under Florida law and by Florida probate proceedings, then it is important not to delay or procrastinate in having those concerns addressed. Most Florida probate lawyers, like Larry Tolchinsky, offer a free initial consultation but no Florida probate attorney can be of help to you if you want to do something after the legal time deadline has passed, no matter how unjust that result may be.
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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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