Most Floridians regard a will as the last word on how the assets of a particular family member will be divided among survivors. This assumption is true in most cases, but in some cases, a family member will be disappointed, if not enraged, at the manner in which the will distributes the decedent’s assets.
The only remedy in these cases is commencing a proceeding to challenge the validity of the will. These proceedings, commonly called “will contests,” are not available to everybody.
Basic rules of a will contest
The person whose will is being challenged must be dead. A will challenge cannot be started if the person who made the will has not died.
The only persons who can challenge a will are “heirs at law,” that is, persons who would inherit some of the decedent’s assets if there had been no will, or persons who are named as beneficiaries in the will at issue.
A challenge based upon failure to follow the formalities of executing a will
To be valid in Florida, A will must be written and signed by the person making the will, who must be at least 18 years old. The will must also have been signed before two witnesses over 18.
Substantive challenges
Florida law provides several substantive bases for invalidating a will. The first is proof that the testator lacked the necessary mental capacity to make the will and to decide how to divide his or her assets.
Proof of lack of mental capacity usually depends upon the testimony of the decedent’s health care providers and generally requires an expert opinion that the decedent did not have sufficient mental capacity to understand the legal effect of the will.
Undue influence
A second substantive ground for a successful will challenge is proof that the testator made one or more bequests while under the improper influence of an heir.
Successful proof of undue influence depends upon evidence showing that the testator developed an unusually close personal relationship with an heir named in the will and that the relationship enabled the testator’s heir to dictate the terms of the will.
Fraud
A third substantive basis for invalidating a will is proof that the testator was the victim of fraud, i.e., that an heir caused the testator to make a bequest by misrepresenting a material fact.
