A will contest is a lawsuit brought by a person who feels that he or she was wrongly excluded from the beneficiaries named in the will. The lawsuit must be started and tried in probate court. A will contest can be based upon a number of grounds. The persons contesting the will may argue that the will is invalid, or that the will is based upon fraud or misrepresentation, or that the bequests in the will were determined by undue pressure.
Challenging the validity of a will
All wills in Florida must comply with six requirements, called “formalities.” The formalities of a valid will in Florida include the following: the will must be in writing and signed by the person making the will (the “testator”). The testator must have possessed the mental capacity to understand the legal effects of the will and to have intended to give property to the persons named in the will. Only a few people may commence a will contest: a person named in the will (a “beneficiary”) who feels that his or her share is less than was expected; persons named in a previous will whose share of the estate was greatly reduced from earlier versions of the will, and anyone not named in the will whose share would be significantly greater if the distribution of property were determined by the state’s laws of intestate succession.
Reasons for winning the will contest
Florida recognizes several grounds for prevailing in a will contest. The person contesting the will can prevail on any one of the following reasons:
- The testator was not mentally competent when he or she signed the will. The testator must possess “testamentary capacity,” that is, the mental ability to understand the meaning of writing and signing a will.
- The testator was under undue influence from one or more beneficiaries to make a bequest that favored them to the detriment of other beneficiaries.
- Laws were broken during the drafting and signing of the will; fewer than two witnesses were present when the will was signed.
- The will may have been forged or otherwise fraudulent.
- A more recent version of the will exists.
- The will is formally incomplete, meaning that it lacks a signature or was not witnessed by at least two people
A will contest can be a very expensive legal proceeding. Anyone who is contemplating initiating a will contest may will to consult an experienced probate attorney for an evaluation of the evidence and an estimate of the likelihood of prevailing.
