Contesting a Florida Will

If you’re unhappy about your relative’s Last Will and Testament, you may be able to contest it. Contesting a Will in Florida requires proceedings to be issued in the probate court.

Valid reasons for contesting

You cannot contest a Florida Will merely for the reason of being unhappy with your share. There must be a valid ground for the challenge, usually pertaining to the validity of the Will. For example, a court would accept the contest if the execution of the Will was procured by fraud, duress, mistake or undue influence (see section 732.5165 of the Florida Probate Code).

Penalty Clause

Sometimes a Florida Will may contain a clause which penalizes a person for contesting the Will. In Florida, this clause is unenforceable against any interested person who brings an action for contesting the Will or institutes other proceedings relating to the estate. 732.517

Other states allow this clause to penalize the beneficiary (but only where the contestant did not have ‘probable cause’ for instituting proceedings. Florida strictly forbids the clause on public policy grounds.

This means you won’t be penalized by the terms of such a clause when contesting a Will in Florida.

Time Limits

If you are served a copy of the Notice of Administration, then you must file objections to the validity of the Will within 3 months of the notice being served on you. Otherwise, any objections are barred. 733.212(3)

Note you cannot bring an action to contest the validity of a Will whilst the testator is still alive (section 732.518). So if you happen to stumble across your parents’ Will that seems unfair to you, you should approach them whilst they are still alive to see if you can reach an amicable solution. If not, then you will have to wait until their demise to raise the matter in court.

What proof is required?

Once a Florida Last Will and Testament is contested, the Florida Probate Code stipulates the burden of proof for each party.

The proponent of the Will (the person trying to prove its validity, usually the executor), must establish prima facie its formal execution and attestation. This is usually established if the Will is self-proved or simply by the affidavit of an attesting witness.

The person contesting a Will in Florida must prove the grounds on which he/she opposes the Will. If there is a presumption of undue influence, then the burden shifts in accordance with section 733.107(2).

Get a lawyer

Objecting to a Will requires litigation (ie: issuing court proceedings). This can be complex, time consuming and expensive. It’s best to consult a qualified attorney to discuss the matter before commencing any action yourself.

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