A will can also be referred to as a last will and testament. Both terms are describing the same estate planning tool and both are used in this article. When trying to understand the elements involved in contesting a will in Florida, it helps to first have knowledge of what a valid will actually is so let’s start there.
What makes a Will valid?
The first requirement is that the testator (the person for whom the will belongs) is of sound mind and is either at minimum 18 years of age or is an emancipated minor. The document must exist physically, whether handwritten or typed text, and able to be produced upon death.
Once the document has been drafted properly, the testator must sign in the presence of two witnesses, who both acknowledge of these facts with their own signatures on the documents. Additionally, all of this must occur in the presence of a notary who will acknowledge that she observed the will being entered into voluntarily and in the presence of the two witnesses. For more general information on wills, please see our page on wills in Florida.
More information on drafting a valid will:
It is helpful to know that a will can still be created even if the testator is incapacitated or physically unable to do so. On behalf of the testator, an individual who is not a witness to the will may write the testator’s name at the end of the will to indicate the testator’s authorization and agreement with the will, if it is done in the presence and under the direction of the testator. Although it is legally permissible in Florida to allow witnesses who may have an interest in the will to serve as witnesses, it is recommended not to include such individuals if possible.
Can a will be modified?
After its creation, a will can be modified in the state of Florida if properly edited and executed according to the same rules referenced above. The entire document does not need to be rewritten in order to change or modify the terms. You can change the terms and conditions through the means of adding a codicil. However, if conflicting wills appear during the probate process, it is held that the most recent copy is valid. Even if the most recent copy of a will is deemed valid, this concession can be called in question.
What are some reasons for contesting a will in Florida?
There are several court-recognized reasons why a last will and testament may be disputed in Florida. Situations involving potential fraud, wills signed under duress, unfinished or invalid declarations, multiple conflicting documents, and wills created unbeknownst or unfit to the testator’s expectation can cast doubt on the validity of the will. Specific reasons for contesting a will in Florida can be found in the following paragraphs.
A will may be challenged, and potentially deemed invalid, if it is determined there was a lack of testamentary capacity at the time the document was generated. This can occur if the testator is not of sound mind. To determine if a testator was not of sound mind there must be evidence that the individual did not realize they were creating a will, did not understand the nature of the document, could not properly assess the value of their estate, did not anticipate the repercussions of their choices, or were suffering from a mental illness.
The testator’s bequest may also face a challenge if determined that there was a lack of valid execution. The validity comes into question if there is any doubt about the presence of witnesses and the testator at the time the Will was signed. This could include, but is not limited to, the testator not signing in the presence of the witness or witnesses who don’t sign in each other’s presence. All the formalities of a proper will, as instructed by the state, must be met for the document to be valid.
Another established notion for contesting a will in Florida would be if the testator were presumed to draft the document while experiencing undue influence. To prove a person was unduly influenced there must be evidence that the individual was coerced or under duress while drafting the document. There is a very high standard for proving such a claim. There must be no doubt that the will was created, and in such a manner, that it could have been done so only while under undue influence.
Wills believed to be fraudulent or forged may also be challenged. Will’s are suspected to be fraudulent or forged if they were rewritten close to the testator’s death and drastically redistribute inheritance in favor of an individual who may have witnessed or produced the new document. The Last Will and Testament may be ruled fraudulent if the document amended was done so at the urging of an individual who profited from the change. Not all late-stage changes to a will are considered fraud or forged but if such allegations are made, there is a specific procedure for doing so. In Florida, this is a major issue due to the amount of elderly that reside in the state.
The last potential contest to a bequest can take place for rectification and construction claims. These claims may be brought forth if clerical errors have occurred if the inheritance is misinterpreted or not distributed as instructed, or if the document was drafted negligently. If the wording is unclear, this may bring about some confusion that needs to be interpreted and clarified by a court.
What to do when contesting a will in Florida?
To challenge a will in Florida, an individual must file a Petition for the Revocation of Probate within the appropriate timeframe. The petition must declare contest under the terms for which a will may be challenged as recognized by the state. The deadline to apply for revocation varies depending on if and when a will was submitted to probate as well as if and when the petitioner became notified of the submission. Once the petition is filed the estate executor may continue to perform their administrative duties, but is not permitted to distribute any property from the estate that could potentially transfer to a different recipient upon a successful contest. It is the burden of the petitioner (the person or entity challenging the Will) to prove the will invalid. The court may find that either the entire will or just a portion of the will is invalid. A proportional determination can be corrected as deemed appropriate. If the entire will is considered null and void, then the estate will adhere to Florida’s intestacy laws as if there was no will at all.
What happens if there is no known will, intestate probate opens and closes, but then at a later date, a will turns up?
In the state of Florida, if no Last Will and Testament is discovered after death and the intestate probate proceedings have taken place and are finalized, including the distribution of property and the discharge of the personal representative, then the estate is complete and cannot be altered. It should be noted that after death and during probate there is time to produce a will. If the executor of the estate and all interested parties have agreed that no declaration is known to exist, then probate continues according to intestacy laws. Once intestate probate finalizes, as signified by the discharge of the personal representative, then no later discovered will can be introduced.
If you have not drafted your estate plan yet, you should check out top 10 estate planning tips here.