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Contesting a will in Florida

On Behalf of | Jun 2, 2023 | Estate Litigation, Estate Planning, Probate |

 Floridians who make wills generally assume that the will prevents after-death conflict among potential heirs. Unhappily, this expectation can easily fail if the decedent did not execute the will as a “free act and deed.”

Heirs or other potential beneficiaries often expect a greater inheritance than they actually receive under the terms of the will. When this unhappy state occurs, the result is often a lawsuit called a will contest.

Florida, like most other states, has established strict rules for how to commence a will contest and the facts that must be proved to have the will declared to be invalid.

The basics

The first rule of a successful will contest is the death of the person whose will is being challenged. A will cannot be challenged until the person who made the will (called the “testator”) has died.

Florida law requires that a will contest must be commenced not more than 90 after the filing of the notice of administration. A will contest must await the death of the testator. Only heirs at law (individuals with a legal claim on a portion of the estate) may challenge a will in court.

Grounds for a successful challenge

The most powerful argument in a will contest is proof that the testator did not exercise his or her full mental capacity in signing the will. In other words, the person challenging the will must prove that the testator’s signature was the product of other factors besides unfettered mental capacity. These factors include the following:

  • Lack of sound mind: If the testator suffered from dementia or Alzheimer’s disease or some other affliction of mental capacity, the will may be declared ineffective to convey the testator’s assets. Such conditions are typically proved by testimony from the testator’s health care providers, usually a psychologist or psychiatrist.
  • Undue influence: A similar proof consists of showing that one or more persons exercised undue influence over the testator and that this influence was used to persuade the testator to make unduly generous bequests to various heirs. Undue influence is usually proved by showing that the testator spent significant amounts of time with the persons alleged to have exercised undue influence or had an unusually close relationship with those persons.
  • Fraud or misrepresentation: Some potential heirs often use false statements about material facts to induce the testator to favor them in the will. The statements must concern factual matters that were considered important to the testator, such as the use of proceeds to favor a particular institution or person.


As this discussion implies, will contests are very complicated lawsuits. They require detailed knowledge of the applicable law and the ability to organize and present pertinent evidence persuasively.