When someone is left out of a Florida will, there are two things they can do. First, they can invalidate the will – if the will maker was pressured improperly or was not competent enough to make a will. And second, they can go around the will by using Florida’s relative protection laws.
A common reason for a Florida will challenge is a claim that the will maker was pressured to make the will. Such challenges are subtle, as proving mere pressure is not enough to win – the pressure has to be so strong as to overpower the mind and will. The following factors can make a Florida will challenge stronger: the disposition was unnatural; one child got more then another or was left out; the circumstances were suspicious; a lawyer was not involved; the will maker was susceptible to influence.
The mere fact that a person had a chance to influence the will maker does not mean that they did influence the will maker. However, the opportunity to influence a will maker does count in a Florida will challenge – once it is proven that the person who benefited from the will was in a confidential relationship with the will maker and also made the arrangements for the will execution, Florida law presumes that the will maker was pressured and there was undue influence.
Another reason to challenge a Florida will is lack of mental capacity. Many people make wills at a stage in their lives when they are old, frail, sick, and have failing memory and swaying judgment. When people get older, some become more eccentric – hence some of the stranger wills I’ve seen through the years. People also tend to become more trusting with age. But one has to be careful when bringing this kind of will challenge – just because a person was old does not mean that they could not make decisions about what happens to their estate. As long as the will maker knew what was going on with their estate, what they were doing and who their heirs are, their will usually stands. To prove lack of mental capacity, a will challenger needs to show severe incapacity. Read more about incapacity here: How Do I Know If Someone Has Capacity to Make a Will in Florida?
A forgery challenge to a will is also possible. Although I have seen wills that were obvious fakes, most of the allegedly forged wills at least appear genuine. If a will was prepared with the supervision of an attorney and that attorney is still around to testify, chances of winning a forgery claim are pretty slim. The chances get even less if the will looks professionally put together and the signature matches the will maker’s other signatures on file. But if the signature looks very different from the will maker’s previous signatures and there is no reasonable explanation for that, and especially if a will also looks sloppy and suspicious, a forgery claim may succeed.
Another way to challenge a Florida will is to say that it was not properly executed. Florida law has a strict position on will execution. Unlike most other states, Florida requires both witnesses and the person making the will to be in the same place when the will is executed. There are cases where a Florida will was declared invalid when one witness went out of the room for a minute while the other witness was signing. Even though they were in the same office – that is how strict the law is. This is why it is important to examine the attorney who drafted the will and the witnesses, to inquire about where the witnesses were. This is a real chance to have a Florida will invalidated. Many times a will is made without an attorney, especially here in Florida, where many people are used to filling out forms bought in a stationary store or downloaded from the internet. They fill out a piece of junk and think that they’ve made a valid Florida will. In light of the above, a lack of execution claim can be a successful way to win a Florida will contest.
A claimant is not limited to just one ground for challenging a will. Once a will is problematic, it is likely to have more then one problem. Will challenges based on multiple grounds are proper, as long as it is not obvious that the challenger is just trying to throw whatever sticks. Most commonly, such will challenges involve an elderly person who because of a health condition, not only lacked the mental capacity to make a will, but was also more prone to manipulation and pressure.
Some relatives are entitled to a part of the decedent’s estate without having to go through a will challenge. A spouse gets strong protection under Florida estate law. If the will was made before the marriage, the spouse still gets a large share of the estate even if she was not in the will. If a will was made after the marriage and the spouse was left out of it, the spouse would still be entitled to the Florida elective share in the amount of more then 30% of the estate. A Florida spouse also has substantial homestead rights, which include the right to stay in the home. Florida estate law affords some protection to a child as well. If a will was made before a child was born, the child is entitled to share in the estate.
One technical point – the State of Florida does not have the so-called dead man’s statute. Consequently, conversations with the deceased during their lifetime are allowed into evidence. Nevertheless, even with that evidentiary benefit, will contests still remain the most difficult type of Florida estate litigation.
If you need an estate attorney to prosecute or defend a Florida will challenge, give me a call at (954) 239-1283.