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When and How to Challenge a Will 

When someone disagrees with a will’s validity and execution after a loved one passes away, they can challenge the will in court. Also called “contesting” a will, formally challenging a will can elongate probate and sometimes turn family members against each other. For this reason, challenging a will should only be done for serious matters. Here’s what you should know about contesting a will in Florida. 

Who Can Challenge a Will?

You can contest a will if you have a vested interest in its outcome. You’d be considered to have a vested interest in the will if you’re a beneficiary or would be entitled to a share of the estate according to Florida’s intestate laws. This includes surviving spouses, children, parents, siblings, nieces, nephews, and the decedent’s other blood relatives.

Reasons for Contesting a Will

You can’t contest a will just because you don’t like what it says or are mad that you have been omitted. However, there are some situations where challenging a will is necessary to ensure a loved one’s final wishes and desires are carried out as they originally intended. Here are the common reasons to contest a will in Florida: 

Invalidity 

For a will to be valid, it must meet the requirements outlined in Florida Statute 732.502. It must be in writing and typed (not handwritten or created orally). The decedent must have been at least 18 years old when it was drafted. The will also needed to be signed by the decedent and two witnesses. 

Created Under Duress or Undue Influence 

Undue influence occurs when a will is created under forceful manipulation by someone who would benefit from it. To challenge a will because of undue influence, you must prove that the decedent was pressured or persuaded into creating the will in a particular way to benefit another person. In addition, you can challenge that a will was made under duress, meaning the decedent created the will in a certain way because they were threatened.

Incapacitation 

The person creating the will must be of sound mind when they draft it. If you can prove the will was made without the decedent’s total mental capacity, you may be able to challenge it. You’ll need to provide documentation such as medical records to show that the decedent had a chronic condition (like late-stage dementia) that prevented them from being fully aware of the document they were drafting.

Improper Removal

If you think you have been unjustly removed from someone’s will, you may want to challenge your removal in court. To do this, you’ll need to show that the decedent intended to include you in their will but excluded you by mistake or force. 

How to Challenge a Will 

If you want to challenge a will, you must submit a petition to the probate court within 90 days of the Notice of Administration. In your petition, you must state whether you want the will to be revoked, modified, or declared invalid and your reason for challenging it. Once the probate court receives the notice, a hearing will be scheduled to determine the will’s validity. 

 If the challenge is successful, the will is considered invalid. The estate’s assets will be distributed according to Florida’s intestate line of succession. This line of succession prioritizes the surviving spouse, followed by children, parents, siblings and their children, other blood relatives, and finally, the state.

If only a part of the will is considered invalid, that part will not be enforced. The rest of the document will be executed according to what is stated in the will.

Estate Administration and Will Execution: Every & Stack 

Contesting a will can be a challenging and emotional process. However, if you think a loved one’s will is invalid, you may want to challenge it to preserve your family’s legacy. Our experienced legal team can provide the guidance you need to navigate challenging a will. To schedule a consultation, call our office at 386-255-1925.

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