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Gierach and Gierach, P.A. Contesting a Will

What You Should Know About Contesting a Will in Florida

Grounds for a Florida will contest

Most valid wills pass through the probate process without anyone disputing or challenging the will provisions. Sometimes, though, a loved one feels that he or she was improperly excluded from the will and hires an attorney to contest it. At Gierach and Gierach, P.A., we try to find out who might be inclined to contest your will, so that we can make sure your wishes are carried out.

Challenging a will requires proof of appropriate grounds for the contest. An attorney from Gierach and Gierach, P.A. can help you explore grounds for initiating a will contest or defending against one. The primary claims for challenging a will through probate litigation include:

  • Lack of execution formalities — To be executed properly, a Florida will must be signed by the testator and two witnesses who were present at the time of execution by the testator. The petitioner may contest the will on the grounds that the will was not properly drafted, signed or witnessed according to Florida law.
  • Lack of testamentary capacity — Florida law requires a person making a will to have the mental capacity to draft a will and to recognize the scope of his or her assets. The testator must also have the mental capacity to appreciate the person or persons the assets are going to be distributed to. Generally, testamentary capacity of the testator is presumed. The challenger of the will has a heavy burden to present evidence of the testator’s prior medical diagnosis of dementia, Alzheimer’s disease or psychosis. The petitioner may also present witness testimony as to the testator’s delusional or irrational behavior at the time the will was executed.
  • Undue influence — An additional ground for challenging a will is that the testator was unduly pressured to the extent that he or she did not act voluntarily when signing the will. To succeed in a claim of undue influence, the person challenging the will needs to show that the party who influenced the testator:
    • Is a significant inheritor under the will
    • Maintained a confidential relationship with the decedent
    • Played an active role in the creation, drafting and execution of the will
  • Fraud — A will is void if it was created and executed through fraud.  Generally, there are two types of fraud:
    • Fraud in the execution – The party committing fraud told the testator that the document being signed was something other than a will
    • Fraud in the inducement – The party committing fraud misled the testator to make a different distribution of property than he or she would otherwise have made
  • Duress — Duress is grounds for challenging a will when someone threatens the testator with physical harm or coercion to cause the execution of the will.

Time constraints on filing a Florida will contest

Florida law does not allow much time to contest a will.  After a notice of administration is received, a person interested in contesting a will in Florida has only 90 days to gather his thoughts and evidence and file a suit in probate court.  Where a formal notice of administration has been received before the will has been admitted into probate, the potential claimant has only 20 days to file a will contest in Florida.

Contact capable Orlando wills attorneys who understand will contests

An estate planning attorney at Gierach and Gierach, P.A., which serves Orlando, Winter Park and all of Orange County, is glad to help you with any aspect of contesting a will. If a loved one has passed, and you'd like advice on settling the estate with or without a will, you can rely on our decades of experience in probate law. We also assist people from other states needing legal assistance in Florida. Call our law firm at 407-545-5744 or (844) 431-0813 or contact us online.

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