challenging a will

Challenging a Will

When a person dies with a will, their will lays out who receives their property (called “heirs”) and who will manage and distribute their estate (called the “personal representative”).  For many reasons, potential beneficiaries can feel slighted by what they did or did not receive.  Some individuals are entirely excluded from inheriting anything at all.  The legal process of challenging the validity of a will is called a will contest or challenging the will.

Once probate is underway, the named personal representative will take the necessary steps to complete probate and notify beneficiaries named in the will.  This legal notice typically limits the time when a beneficiary can contest the validity of the will.  Generally, a beneficiary (and even a person not named in the will) has thirty to ninety days to bring legal action against the decedent’s will.

The vast majority of wills pass through probate without issue. 

The courts rightly view the will like the author’s/decedent’s last voice.  Because the decedent can no longer speak to their wishes, the courts try to adhere to the legally filed will stringently.  And due to the narrow timeline for filing a will contest and the odds stacked against winning the legal challenge, most challengers will find it a fruitless and costly endeavor.

Under what circumstances would you want to challenge a will? 

Legally, only a person or entity with “standing” can contest a will.  Standing is when the party involved in the will contest will be personally affected by the case’s outcome.  Most often, this means an heir or beneficiary already named in the decedent’s last will or any preceding will.  It may also include any person (usually a spouse or child) not named in the will, but who would because of state intestacy laws be eligible to inherit in the absence of a will.  Typically, four grounds are viable for contesting a will:

  • The will’s signing lacked the proper legal formalities
  • The mental capacity of the decedent to make a will is in question
  • Someone exerting undue influence over the decedent into making or changing a will
  • The will’s procurement is fraudulent

Certain fact patterns may lead to a successful will contest.  As an example, if a testator writes their own will, some legal formalities may be overlooked, rendering the will invalid.  In particular, the “do it yourself” method of creating a will may not include all of the “what if” scenarios making the will incomplete.  In another example, if the testator is experiencing isolation from family and friends, the primary beneficiary’s influence and motives regarding the estate may come into question. If the personal representative is trying to enforce an outdated will, the newer one should supersede the older one as long as no coercion was involved in writing the most recent version.  Finally, some medical evidence may suggest the testator lacked the requisite mental ability to make a will.  Occasionally, the challenger to an existing will can negotiate a settlement with the estate instead of enduring a court proceeding.

Some wills include a no-contest clause, also called an “in terrorem” clause.  

This provision states that if anyone files a lawsuit challenging the will’s validity, they will receive nothing from the estate.  While this may seem a powerful deterrent, it will not be given effect in Florida courts due to the provisions of the Florida probate code. 

In addition to the reasons listed above, there are several provisions in the Florida probate code by which certain categories of beneficiaries, especially spouses and minor/dependent children, can make elections to receive assets in spite of the will provisions.  When this happens, the will is still given effect to the degree possible, but the omitted spouse and/or dependents can end up getting more than the will provides by its terms.

If you would like to discuss whether a will is appropriate for your planning or if you should update an existing will, we would be happy to speak with you.  Just call our office at 239-434-8557.

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