If you believe the will your loved one created is invalid, you may be able to challenge it in a Florida probate proceeding. However, in order for it to be void, it must meet one of the legal requirements for contestation. Being unhappy with the will’s provisions or simply suspecting something wrong is not enough. You must be able to prove that there are sufficient grounds for questioning the will’s validity. The following are the most common reasons for contesting a will.
1. Incompetence
The testator (person who made the will) may have had a mental illness, dementia, delusions or another medical condition that inhibited rational thought and comprehension. A medical diagnosis usually is needed to establish incompetence. Furthermore, the presence of a mental health problem is not enough. You must show that it caused a lack of testamentary capacity. Incompetence may also include being under the influence of drugs.
2. Undue influence
A third party may have influenced the provisions of the will through pressure, coercion or manipulation. This can be hard to prove because it requires that the behavior took away the testator’s free will. For example, the party could have safeguarded the will, kept the testator away from family or spoken with the testator’s attorney. Usually this person is one of the following:
- New friend
- Health care worker
- Caregiver
- Business partner
- Child or other family member
Whether the purpose was to alter the will in the influencer’s favor or prevent others from receiving assets, it is grounds for contesting the will’s credibility.
3. Fraud
Fraud is different than undue influence in that it entails influencing the will’s provisions through deception. For example, a beneficiary may lie about another beneficiary to encourage the testator to change either person’s inheritance. Or someone may trick the testator into signing legal documents that change the will or that are a will. Another action could be forgery. Proving fraud requires the testimony of witnesses to the signing.
4. Incorrect execution
For a will to be valid, it must follow Florida laws on the procedure. The creator of the will must sign the document in the immediate presence of two witnesses, who also sign it at that time. Including the date is also vital to show that it is the most current will.
If any of these grounds are relevant to your situation, speak to an estate planning attorney right away to avoid passing the statute of limitations. Do not worry about “no contest” clauses in the will, as Florida does not uphold them. A lawyer can help determine the best way to challenge the will.
