There are a lot of emotions involved when a loved one dies and contesting a Will can be a difficult proposition. A Last Will and Testament aren’t invalid just because one of the parties does not like the contents. There are often times that a family member is excluded from a Will or their device is limited. It can be hard for some to accept the reasons why the decedent chose to divide up their estate. While contesting a Will can be hard on all parties, there are cases where it is worth it. Here’s what you should know.
Can I Contest a Will or a Trust?
The short answer is “yes’, but there are factors you will have to consider. Each state has its own rules on contesting a Will, so be sure to check with a reputable lawyer before taking any action.
There are a few factors to consider before you decide whether or not to contest a Will. These include:
The reason you are contesting the Will
The time that it will take
The expense involved
How likely your success will be contesting the Will
Reasons to Contest a Will
You cannot contest a Will just because you don’t like what it says. You must have legal grounds to challenge the Will’s validity. You also must have legal standing. In order to have legal standing in Florida, you must be an interested party. While the term is fairly broad, the interested parties generally mean beneficiaries, creditors, and heirs.
Here are a few reasons to consider contesting a Will:
Irregularities in the Execution of the Will
Since Wills are formal legal documents, the documents must comply with legal formalities in order to be valid. For instance, in Florida, a Will must be in writing, signed by the testator (person making the Will) and it must be signed by the testator in the presence of two witnesses and preferably a notary public.
Incapacity of the Testator When They Wrote the Will
Anyone over the age of 18, who is of sound mind, may make a Will. This requirement is known as “testamentary capacity”. In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid Will.
Contesting a Will for undue influence contends that someone manipulated the testator into altering a Will for their own personal gain. This could include executing or modifying the Will or removing one or more beneficiaries from the estate. This is typically the most common dispute over Wills.
The court will look at several grounds for determining whether there was undue influence known as the Carpenter factors. The nonexclusive list of factors that, if present, may show a presumption of undue influence:
1) presence of the beneficiary at the execution of the document in question or at the occasions where the testator expressed a desire to devise;
2) the beneficiary's recommendation of an attorney to prepare the document in question;
3) the beneficiary's knowledge of the document's contents prior to its execution or the occasions where the testator expressed a desire to devise;
4) the beneficiary giving instructions to the drafting attorney; and
5) the beneficiary securing witnesses and safekeeping of documents after execution.
If a Will was executed, modified, or signed due to the threat of physical harm against the testator, the Will was not valid and can be subject to litigation.
A Will can be contested if it was executed under false pretenses. Some examples of estate fraud can be when the testator is not told they were signing a Will or misrepresenting to the testator what the Will entails.
Beginning the Process of Contesting a Will
In Florida, contesting a Will is done through probate court. The process is usually started with a petition for revocation of the Will in the probate proceedings. If a trust is being challenged, it will require a separate lawsuit to contest the trust’s validity. Generally, contesting a Will must be submitted before the probate process is complete (usually within three months of receiving notice regarding the Will).
Generally, the proponent of the Will must show prima facie its formal execution and attestation, or “sufficient to establish a fact or raise a presumption unless disproved or rebutted”. Thereafter, the burden is on the contestant to the Will or trust.
While anyone can file a petition with the probate court in the county where the deceased died, it is recommended that an estate planning lawyer file the claim on your behalf. A lawyer will increase your chances of winning, plus they will be able to determine whether you have a good shot at winning or not.
Depending on your case, contesting the Will may require you to go through much of the same legal proceedings. Typically a trial or hearing will be required to determine the validity of the Will or trust unless the parties settle the matter voluntarily. It is possible that you will have to sit for a deposition, plus it is likely that you will have to submit evidence on your behalf during discovery if the case continues through legal proceedings.
I’m Here to Help!
I’m Rob Robinson, and I provide personalized, responsive, and high-quality legal counsel. Contesting a Will can be an uphill challenge. These cases can also be complex and emotionally draining. As a sole practitioner, I can ensure that your case is handled with individualized care and attention. I will evaluate your case and give you solid feedback on your chances of contesting the Will.
There is a time limit on challenging a Will, so please don’t hesitate to contact my office. I will always be dedicated to serving you with excellence and integrity.