Frequently Asked Question
Frequently Asked Questions About Probate
If you are involved in a dispute over a will, trust or other estate related matter, you probably have many concerns and questions. Below is a list of the most often asked questions about probate litigation and estate related challenges:
1. On what grounds can a will be challenged or contested?
There are several different bases upon which a will may be challenged or contested in Florida:
- Improper Execution - In Florida a will must be in writing and signed by the testator in the presence of two witnesses. A will can be challenged on the grounds that it was not prepared, signed or witnessed in accordance with Florida law requirements.
- Undue Influence - When a testator is not able to freely and voluntarily execute a will because he or she is being unduly pressured by another person, the will may be challenged. In essence, undue influence occurs when the pressure exerted over the testator is so strong that it destroys his or her free will to execute the document.
- Lack of Mental Capacity - Under Florida law, an individual must have sufficient mental capacity to make a sound and independent decision when signing the will. Lack of mental capacity cases can be difficult to prove because the mental capacity of the testator is generally presumed.
- Fraud or Duress - When a testator is tricked into executing a will or lied to in order to change how the testator wishes for his or her assets to be distributed, the will can be challenged for fraud. If a testator is threatened or coerced into executing a will, it can be contested on the grounds of duress.
2. Who can challenge or contest a will?
In Florida, wills can be challenged on several different grounds by heirs, beneficiaries and other interested parties. You do not necessarily have to be a spouse or family member to challenge a will. Any interested party (generally meaning any person who may be affected by the outcome of the proceeding) may file a will contest case. Will contest cases can be quite challenging and should be handled by a skilled trial attorney who knows how to litigate complex probate and estate litigation cases.
3. What happens if I contest a will and lose my case?
In Florida you will not be penalized if you contest a will and your case is unsuccessful. Section 732.517 of the Florida Probate Code specifically provides that language in a will that purports to penalize any interested party who contests the will or institutes other proceedings involving the estate is unenforceable. This means that even if a will contains a penalty clause, often referred to as a “no contest” or “in terrorem” clause, the clause is unenforceable and you will not forfeit any of your rights under the will should you lose your case.
4. What should I do if I am thinking about filing a challenge to a will?
If you are involved in a dispute over a will you should discuss your situation with an experienced probate litigation attorney as quickly as possible. There are very strict time deadlines associated with filing a will contest suit in Florida. If you fail to meet these deadlines you may lose your right to pursue your claim. It is also important to know that you do not have to wait until probate has commenced before filing a will contest suit.
Probate and estate litigation, including will contest cases, tends to involve highly complex legal and factual issues. You should look for a strong team of trial attorneys with the experience, talent and skills necessary to investigate, prepare, and try complicated will contest cases in court.
Contact SW Florida Probate Trial Lawyers
The frequently asked questions and answers about probate set forth above are designed to give you a general understanding of some of the common issues involved in probate disputes and estate litigation cases. If you are involved in a will contest case or any other type of estate or inheritance related litigation, contact the probate and trust litigation attorneys at SW Florida Probate Trial Lawyers today. Our lawyers have more than 200 years of combined experience litigating and trying complex civil claims.