You created the perfect estate plan.
Your beneficiaries are named and you can finally take a deep breath knowing that if something happens to you, your family will enjoy the legacy you’ve left behind.
But what if your heirs fight over your estate?
Many testators like to think happy thoughts when it comes to how their estate will be distributed after their death.
Unfortunately, without the right legal help, your estate plan may be a family fight involving a will contest waiting to happen.
When can a will be challenged?
In Florida, you may challenge a will after the testator’s death and before probate is complete.
Probate is the process of administering a will under the direction of the court.
Once the deceased’s will is admitted to probate, you have 3 months to contest the will, assuming you received proper notice.
If you did not receive notice, you may still challenge the will as long probate is ongoing.
What are the grounds for contesting a will in Florida?
- Lack of proper formalities — In order for a will to be accepted and executed, proper formalities must be followed. A will that is not lawfully drafted, signed, or witnessed, may be contested. In Florida, the will must be signed by the testator and observed and signed by two witnesses. Best legal practice is to have a Self-Proving Affidavit whereby both the testator and the witnesses sign for a second time in the presence of a notary.
- Lack of capacity — One of the most common reasons a will is contested is because of the suspected lack of capacity of the testator during signing. If a will creator (testator) is deemed mentally incompetent, disabled, or unaware of their assets or estate, the will may be contested. Dementia, Alzheimer’s and other conditions that affect cognitive impairment are examples of “lack of capacity”.
- Undue influence — This occurs when the testator is coerced or pressured into creating or signing the will at the direction of another person. Undue influence may come from new acquaintances, caregivers, medical professionals, friends, and even family members.
- Insane delusion — In order to have a will contested on the basis of insane delusion, you must be able to show that the testator believes something to be true that is known to be false.
- Fraud — A will may be contested if you can show that an act of fraud was committed during its creation. This could be a forged signature, forged last wishes, addition of other beneficiaries, etc.
The best way to avoid a will contest is to have an experienced and board certified estate planning and elder law lawyer help you draft a comprehensive state plan.
Florida estate planning attorneys avoid will contests
The Law Offices of Hoyt & Bryan handles a wide range of estate planning matters including guardianships, trusts and estate administration for both trusts and wills.