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When someone passes away, any property titled in their name immediately becomes part of their “estate.” An estate is a legal entity created under the law to help protect both real estate and personal property (things like jewelry, furniture, guns, etc.) as it is transferred to those who stand to inherit it. If the person dies without a valid will, then Florida law provides for the disposition of the property by way of the “intestacy statute” in place that explains who gets what if there is no valid will.

Image: Last Will and Testament of William Shakespeare (dated 1616)

For most people in Florida with significant property (a house, vacation properties, a car or two, etc.), they will likely have had a sophisticated estate plan in place where they’ve had drafted and executed one or more documents, including a Last Will and Testament. This will define who gets what (the beneficiaries) as well as who is to handle the responsibility of the estate itself (the personal representative), among other things.

What the Last Will and Testament provides does not have to be shared with anyone under Florida law. That means that provisions in a will can come as a big (BIG) surprise to relatives and friends who are surprised or even shocked to learn how the decedent has chosen to dispose of his/her property.

Surprise or shock is one thing. However, it’s a more serious situation when there is a suspicion that some kind of wrongdoing has happened — that there has been fraud, duress, a mistake, or even undue influence.

  • What if you suspect that some kind of bad act(s) helped create these will provisions, because they just don’t align with what you know to be the decedent’s real wishes?
  • What can you do? After all, the will is a formal document, and it’s been filed at the courthouse, right?

Challenging a Last Will and Testament

When a beneficiary or other interested party thinks that there has been some wrongdoing which has resulted in the Last Will and Testament being filed and accepted for probate in Florida, then that person can challenge that will on a number of bases and ask the judge to review and consider the circumstances before the property is distributed. If the challenge is successful regarding certain provisions of the will, or the will in its entirety, then the result is an official court judgment that VOIDS that language. The document will not have any legal authority, and the estate will proceed in distributing the property under the terms of another document or under the Florida intestacy statute.

Florida Statute 732.5165 states:

A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

Will Contests are Lawsuits

This challenge to a will results in a litigation commonly called a “will contest.” Florida Statute 732.518. It is a formal proceeding filed in the same courthouse where the will has been filed. It is an “adversary proceeding” in the probate court, and it is a full-fledged lawsuit. There are parties on both sides. There is discovery (requests for documents, interrogatories, depositions). There are hearings. If issues are not resolved prior to trial, there can be a full jury trial on the merits of that will contest.

Presumptions Will Apply That Judges Must Follow

However, before anyone proceeds with the emotional battle of a will contest, they need to know that this isn’t the same kind of lawsuit as one that is filed for a breach of contract or for personal injury damages after a car crash. The will contest has special considerations that create hurdles for those challenging the will to jump in order to prove their case.

It’s been the law of Florida for many years that Florida judges must make every effort to respect the wishes of the person who has died and whose property is being transferred via probate. This means that the Last Will and Testament that has been entered into probate will be given due respect and consideration by the court as the last wishes of the decedent.

As explained by a Florida judge way back in 1927, “ … wills should be given effect except on clear showing of deception, undue influence, or other fraud or disposition of property contrary to law.Hamilton v. Morgan, 112 So. 80, 93 Fla. 311 (1927), quoted with approval by the Florida Supreme Court in Estate of Carpenter, 253 So. 2d 697 (Fla 1971).

Even someone who is known to be mentally ill can make a valid Last Will and Testament that the probate judge will honor. This is because he or she is considered to have the “testamentary capacity” to make their will if the will was executed in a lucid interval, and despite the reality that the person is diagnosed with a mental illness.  This is also true for anyone who is an alcoholic or drug addict, or suffering from dementia. Coppock v. Carlson, 547 So.2d 946, 947 (Fla. 3d DCA 1989) rev. denied, 558 So.2d 17 (Fla.1990).

For instance, in the Coppock case, even though the decedent was elderly and had  “… delusions about his physical prowess… ” the challenge to his will failed because there was evidence – which was undisputed  – that he kept his appointment with his lawyer about the will by himself; he appeared of strong mind at the time, and he properly executed his will.  However, no evidence was presented by the challenger that at the time that he went to the office to finalize the will that he “…lacked the ability to understand the nature and extent of his property, the natural objects of his bounty, or the general process of will-making.”

Which means that the Florida judge must legally rule that the contested will is okay as it is, unless the challenger comes forward with significant admissible evidence to prove their challenge is proper, and that the wishes of the decedent as shown in the will itself, should be disregarded.

How To Win a Will Contest in Florida

Therefore, in order to win a will contest in Florida, the challenge must be based upon strong evidence that is autheticated and admissible. The challenger must be willing to file this challenge as a formal lawsuit in a Florida court. And, the challenger must be willing to work with their Florida probate lawyer in the litigation process of finding witnesses and documents that support and prove one of the elements of Florida Statute 732.5165.

In upcoming posts, we’ll delve into the different bases for challenging a Florida will — fraud, undue influence, testamentary capacity, and more — as well as how the challenger’s burden of proof can be met and has been accomplished in past Florida court cases and legal precedent.

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo 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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