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How to Challenge a Will in Florida

After the death of a loved one, it is important to follow the final wishes of their will. However, in some cases, it may seem that their will doesn’t reflect what you as their loved one would think their final wishes actually were. If this is the case, Florida law actually allows you to contest the will before the probate process is complete, on the grounds that your loved one may not have been in their right mind when writing the will.

The Process

To challenge a will, you and your attorney must file for something called a Petition for the Revocation of Probate. After the petition has been filed in the probate court, the person or persons in charge of divvying up the estate may return to activities as normal. However, they may not distribute any assets that are being contested and could be given to a different person. If you are the family member or friend who is contesting the will, it is up to you alone to submit the evidence that proves the will should be revoked.

Why Challenge It?

Here are some reasons why a will could be challenged:

  • Testamentary capacity– The writer of the will is too young (under 18) to write their own
  • Fraud/forgery, or undue influence– This involves some form of manipulation of the person who writes the will, especially if they were extremely vulnerable at the time of writing
  • Holographic Wills– Wills that were written and signed with no witnesses. These wills must be written in the testator’s own handwriting, but can be easily contested, since there were little to no witnesses.
  • Incomplete Wills– Most states require that will contain at least the name of the person creating the will, one substantive clause, and appoints a personal representative. If a will is missing any of these, it could be contested.
  • One will trumps another– Executors of wills may try to use an outdated If a newer one has been written, the content in the newer will trumps what, the older will says.

Who Can Challenge a Will?

Not everyone can contest a will. Only ‘interested persons’ are allowed to challenge a will, which includes children, devisees, heirs, spouses, creditors, or any other person having a property right or claim against the estate that is being divided. It is important to recognize that some wills have a ‘no contest’ clause. This basically means ‘take it or leave it’ or a beneficiary runs the risk of becoming ‘disinherited’.

BCN Can Help

At BCN The Villages, our lawyers have decades of legal experience in Florida. If you think a loved one’s will was wrongfully drafted, or have reason to believe they were under undue influence, our attorneys are ready to represent you. If you have any questions about the services we can provide you, or would like to come in for an initial consultation, call us today at  (352) 775-4739.