Attorneys Stephen Korshak and Lee Karina Dani

Top will challenges in Florida and how to avoid them

by | Jun 1, 2017 | Will Execution |

When you draw up a will, you expect its provisions to be enforced after you pass. However, many Florida wills end up facing challenges by people dissatisfied with some provisions. The ensuing court battles often consume a large portion of the estate’s assets.

Understanding some common types of challenges can help you take steps to create a valid will and increase the chances its provisions will stand up. Because these matters often depend on complex legal issues and individual facts, consulting an attorney can be vital in this endeavor.

Formal requirements

Before the execution of the will, the probate court must determine its formal validity. This means checking if it meets Florida’s technical requirements for a legal will.

Challenges based on technical validity may question the validity of the witnesses or whether the witnesses and the testators met the requirements for signing in one another’s presence.

Undue influence

Another frequent and complex challenge may arise from allegations of undue influence. This can happen when an elderly or ill person suddenly makes a new will disinheriting family members and leaving a large part of the estate to an unrelated person, frequently a caretaker or business associate. Courts look at factors such as whether the new beneficiary used coercion or fraud to induce the testator to change the will.

Mental incapacity

Sometimes, challengers allege the testator lacked sufficient mental capacity to make a will. Under Florida law, this person would need to show that, at the time of the making of the will, the testator could not understand the nature of his or her assets and of the beneficiaries.

What can you do to avoid these challenges?

One way to guard against challenges is to ensure your will complies with all technical requirements. Shortcuts that may seem convenient may raise complex questions of law. Further, if you know a provision is likely to upset your family, you may want to take steps to establish you know what you are doing.

Each case is different, involving specific family dynamics and relationships as well as multiple relevant laws. A knowledgeable attorney can give you the guidance you need to help your wishes prevail.