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Contesting a will in Florida

On Behalf of | Mar 24, 2023 | Estate Litigation |

Wills are believed to help avoid intrafamily disputes by resolving conflicts among heirs and potential beneficiaries. While this effect occurs in the majority of cases, sometimes the specific bequests in a will stir up controversy by making smaller bequests than the heirs anticipated or by totally ignoring one or more potential beneficiaries. Anyone who feels wrongly treated by the bequests in a will has very few remedies. The maker of the will cannot, of course, change the will, and the only remedy is a lawsuit to challenge the validity of one or more parts of the will. Such a lawsuit is called a “will contest,” and its road to success is very narrow.

The fundamentals of a will contest

A will contest may be initiated only by a person named as a beneficiary in the will, a person who may have a legal interest as a beneficiary or a person who may have an interest in the estate. The lawsuit must be initiated in the county where the will was admitted to probate. The deadline for commencing a will contest is 90 days after the personal representative serves notice of administration or 20 days after service of notice of commencement of the probate proceeding. If none of the notices has been served, the will contest must be initiated within four years after the death of the testator.

Specific grounds for contesting a will: failure to follow formal requirements

Florida law requires a will to be signed by the maker of the will (the testator) and two witnesses. The witnesses must be over the age of 21. Most wills are drafted by knowledgeable lawyers, and the formalities are almost always followed.

Common grounds for challenging a will: lack of mental capacity

In Florida, the testator must comprehend the nature of the will and its effect on the testator’s assets. If the testator lacks this capacity, the entire will may be deemed invalid. If lack of capacity is based on a medical condition, such as Alzheimer’s or dementia, the person contesting the will must provide expert medical testimony about the testator’s mental condition at the time that the will was executed.

Other ways of proving lack of mental capacity

Most will contests succeed or fail, depending on the plaintiff’s ability to prove other ways in which the testator was deprived of the capacity to knowingly and freely execute the will.

Undue influence

One of the most common attacks on the testator’s mental capacity is the argument that the testator was under undue influence from one of the beneficiaries prior to signing the will. This claim requires the plaintiff to show that the testator had an unusually close relationship with one or more of the beneficiaries and that the testator made a bequest to one or more of these persons who greatly exceeded the size of the bequests to other beneficiaries. Undue influencers often include a person on the staff of a nursing home, a child of the decedent who cultivated a close relationship with the testator a few months prior to the will’s execution.


Another method of showing lack of capacity is proof that the testator was tricked into making a certain bequest because the recipient of the bequest made a statement to the testator prior to the execution of the will, which was factual, material and false. The person challenging the will must also show that the testator relied on the fraudulent statement in making the challenged bequest.

Challenging the will’s validity

Challenging the validity of a will in Florida is a complex legal proceeding, and many such challenges fail. Anyone considering contesting the validity of a will in Florida may wish to consult an experienced estate planning attorney for an analysis of the facts, an exploration of potential legal arguments and an opinion on the likelihood of success.