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Grounds For Contesting A Decedent’s Will In Florida


You were made the executor of your mother’s estate. You are one of seven children, but maintained a close relationship with your mother throughout her life and cared for as aged. Now that she has passed your attorney has notified you of your duties as executor and read the will to you and your siblings. Two siblings are aghast to find they were not named as beneficiaries, and everyone is surprised that the decedent donated a substantial portion of her estate to charity. Now your siblings are contesting the will and claim that you coerced your mom into writing them out of it. What can you do? 

Grounds for Contesting a Will

A sibling or extended relative cannot contest a will simply because they are unhappy with it or disagree with another beneficiary’s distribution. In fact, there are limited grounds for contesting a valid estate planning document. Common challenges to a will are called “failure of form” or lack of capacity. Lack of capacity means the will challenger believes the decedent was not of sound body and mind at the time the will was drafted or signed.

If a person is truly incapacitated mentally, they should not be making any legal or business decisions. But usually if someone reaches that point, they would have already signed a legal power of attorney over to their spouse or loved one. That’s also why a person should draft their will in good health, and not on their deathbed. To prove testamentary incapacity, the challenger must prove that the testator(person making the will) did not have the mental capacity to understand their actions, recollect the contents of their property, or remember and understand their own personal relationships with relatives. This is a difficult burden to meet, and usually only comes into question if a last minute change was made to a will shortly before a decedent passed away, or if a decedent had signed a POA before passing away but also was asked to sign an updated will.

One of the other grounds for challenging a will is called “failure of form”. This means there is something incorrect or improper about the face of the document. Perhaps the document was not signed in the presence of two witnesses of no relation to the testator. Maybe it contains the wrong date or a clerical error, or an entire provision is missing. Or maybe the testator’s signature does not match up with their handwriting, and the will challenger believes it was forged. Whatever the potential error may be, the burden of proof is on the challenger to contest the will, but they must do so before the probate process is complete. 

Ensuring Your Wishes are Upheld 

You can prevent these issues from occurring within your own family after you pass by establishing a living trust. While a revocable trust can be altered while you are still living, it cannot be altered once the decedent passes away, and a trustee is placed in charge of administering the trust and distributions based on the instructions the decedent provides. In addition, a strong will should be witnessed in front of two people of no relation to you and who are not named in the will as beneficiaries. You also have the option of getting the will notarized, keeping it on file with your estate attorney, or filing it with the local register of wills in your county. Most importantly, if you make amendments or updates to your will, destroy the old version, whether digitally or on paper. You do not want multiple versions of the same document in existence, as this lays the groundwork for future disputes. 

Call Millhorn Elder Law Planning Group Today

Estate planning is difficult. It can be hard to think about death and what may come for your loved ones. You expect your wishes to be honored, but this is not always the case. However, there are estate planning tools available to help you make concrete decisions and protect your interests. Our attorneys also represent clients engaged in defense of a will or trust contest.  Our lawyers at Millhorn Elder Law Planning Group have experience in estate planning and administration. We would be honored to assist you as you start the estate administration process. Contact us today to schedule a consultation.



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