What You Need to Know About Contesting a Will
Whether you are the executor of an estate defending a will, or an heir contesting it, you need to know that contesting a will in the Sunshine state can be messy. Contesting a will essentially means that you want the court to void an existing will and throw it out of court as if it never existed.
Who Can Contest a Will?
Not everyone is able to contest a Florida will. You must be an heir that would benefit from the will if it were to be thrown out. If you are actually a potential heir and can contest the will, another thing to take into consideration is the reasons that are considered valid for contesting a will. Just because you think you are getting the short end of the stick in a will doesn’t mean you can contest the will. To be successful in court when contesting a will at least one of the following things must apply:
- Lack of Proper Formalities – In Florida you must follow certain statutory formalities when executing a will such as properly signing the document and having it witnessed by two disinterested parties. If these formalities do not take place, the will could be considered invalid.
- Lack of Capacity – If you are attempting to contest a will due to lack of capacity you will need to have some type of records, including medical records, to prove that your loved one wasn’t of sound mind when she or he executed their will. This could be difficult and often turns into an expensive and ugly battle between the opinions of different doctors. In addition, many Florida courts will recognize what is called a “moment of clarity” when it comes to executing a will which can make things even more complicated.
- Undue Influence – This is the hardest out of all of the reasons to prove. Undue influence will require proof that the person executing the will felt compelled to do so in a certain manner because they were in fear of suffering serious reprisals.
- Fraud – This take place when one heir of the will lead the person to modify or create a will based on fraudulent claims. For example, the deceitful heir lied to the decedent about another heir to get that person disinherited.
How to Contest a Will
An administrator or personal representative is typically required to notify all heirs, possibly including any that have been disinherited or excluded) that they are initiating probate. This is the time that a will must be contested. You will need to file documentation in court and make an appearance explaining your objections to the will.
Contact an Experienced Estate Planning Attorney Today
Contesting a will is a long, unpredictable, and expensive process and can take years to settle a claim. If you are an executor defending a will or a potential heir contesting a will, you likely need the assistance of an experienced Tampa estate planning attorney. David Toback, Attorney at Law, has years of experience helping his clients navigate the complex legal system when it comes to dealing with estate planning and probate. Contact our office today to schedule a consultation.