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When Can You Contest a Will

Category: News

Coping with the loss of someone you love is an emotional and painful process.  This experience can become even more difficult when family members and loved ones disagree over the last wishes of the deceased. Unfortunately, there are times when a spouse, child, sibling or another relative or friend believes that a last will and testament should be challenged because it does not reflect the true intentions of the person who has passed away.  These situations can be stressful and challenging for everyone involved and are best handled by skilled attorneys who know how to litigate complicated will contest claims.

Timing of the Will Contest

In Florida, a will can only be challenged after the testator (the maker of the will) has passed away.  The Florida Probate Code (Florida Statute 732.528) specifically provides that any legal action to contest or revoke a will, or any part thereof, may not be commenced prior to the death of the testator.   This means that if you are considering making a legal challenge to a last will and testament, you will have to wait until your loved one has passed.  It is important to note, however, that because you will only have a short period of time after a person has died to file a legal claim, you will need to be prepared to take quick action.  

In Florida, when a testator dies and a will is offered for probate, the individual appointed as the personal representative of the estate is required to serve or give a Notice of Administration.  In most instances, you will only have 90 days after receiving the Notice of Administration from the personal representative  to file a will contest with the probate court. Additionally, if you receive a Formal Notice of Administration before the will has been admitted to probate, your time period for contesting the will may be reduced to 20 days from the date you receive such formal notice.  Because the time frames are so short, you will need to act quickly in order to preserve your right to contest the will.  You should consult with an experienced will contest attorney who can properly advise you on the deadlines and the legal procedures necessary to protect your rights under Florida law.

Grounds for the Will Contest

A will cannot be contested merely because you disagree with the terms of the will or believe that the decedent’s decision regarding the distribution of his or her property is unfair.  You must have a legal basis to challenge the will of the deceased.  In Florida, wills can generally be challenged on four grounds: 

(1) improper execution of the will;
(2) undue influence;
(3) lack of mental capacity; and
(4) fraud or duress.  

Beneficiaries, potential heirs and any other person with an interest in the estate of the decedent may initiate a will contest suit based upon one or more of these legal grounds.  

Even if you do have proper grounds to file a will contest claim, you may be wondering whether you can be penalized for challenging the will.  Under the Florida Probate Code (Section 732.517), any clause in a will that threatens to penalize a beneficiary for contesting a will is unenforceable; no-contest clauses are void in the state of Florida.  This means that even if your challenge to the will is unsuccessful, you will not forfeit any rights, nor can you be cut out of the will.  

Winning a will contest claim in Florida can be a challenging process.  These types of legal disputes are highly contentious and should be handled by an attorney who has significant experience litigating will contest cases.  A skilled will contest attorney will thoroughly review your situation and help you develop a course of action that can best protect your legal rights and interests.