Attorney
You can contest a Florida will if the person who signed it lacked mental capacity, if undue influence, fraud, duress, or mistake led to its signing, or if it was forged or not signed and witnessed as Florida law requires. Disappointment with who received what does not count as a ground. You also need standing, meaning the outcome could reasonably be expected to affect you, and once the estate’s notice of administration is served on you, a three-month deadline to object starts running. A Pensacola probate attorney at Staples Law Group can review the will and the months before it was signed.
Whether the Person Understood What They Were Signing
Florida allows anyone who is of sound mind and at least 18, or an emancipated minor, to make a will. The Florida Supreme Court defines sound mind, which lawyers call testamentary capacity, as the ability to understand in a general way three things:
- What property the person owned,
- Who would naturally expect a substantial share, such as close family, and
- What the will would do once signed.
Courts measure capacity at the moment the will was signed. A person in a final illness, of great age, or with a failing memory can still sign a valid will if they understood those three things on that day. In one Florida Supreme Court case, a man received heavy doses of narcotics during a long illness, yet the court upheld the will he signed on a day the evidence showed his mind was clear.
A serious illness, a failing memory, or heavy medication therefore does not win a capacity challenge by itself. If a court had already declared the person legally incompetent when the will was signed, the person defending the will must show it was signed during a lucid interval, a time when the person again had testamentary capacity. The evidence that decides these cases centers on the signing date: medical and medication records from those days, notes from the lawyer who prepared the will, and testimony from the witnesses and caregivers who saw the person.
Undue Influence, Fraud, Duress, and Mistake
Under Florida’s probate code, a will is void if fraud, duress, mistake, or undue influence brought about its signing. Fraud, duress, and undue influence each ask whether someone else’s deception or pressure, instead of the person’s free choice, produced the will. Mistake is a separate ground listed in the same statute.
Direct proof of undue influence is difficult to obtain, so Florida lets a challenger raise a presumption of it. The presumption arises when someone who receives a substantial share under the will had a confidential relationship with the person who made it and was active in procuring the will. A confidential relationship can exist wherever one person trusts in and relies on another, and the relationship can be social, domestic, or merely personal.
To decide whether a beneficiary actively procured a will, the Florida Supreme Court identified these warning signs:
- The beneficiary was present when the will was signed.
- The beneficiary was present when the person said they wanted a will.
- The beneficiary recommended the lawyer who drafted the will.
- The beneficiary knew what the will said before it was signed.
- The beneficiary gave the lawyer instructions for the will.
- The beneficiary found the witnesses.
- The beneficiary kept the will after it was signed.
A challenger does not need every factor, and the court called the list nonexclusive. When the presumption applies, Florida law shifts the burden of proof to the person defending the will. Helping a parent with daily life differs from arranging the lawyer, the instructions, and the witnesses for a will that favors you.
When the Will Was Not Signed and Witnessed Correctly
Every Florida will must be in writing. The person making it must sign at the end in front of at least two witnesses or acknowledge an earlier signature to them. Someone else can sign the person’s name at the end, in the person’s presence and at the person’s direction, and the person must then acknowledge that signature to both witnesses.
The two witnesses must sign in the presence of the person and of each other. Electronic wills can use witnesses who appear by live video in a notary-supervised online session that meets strict statutory rules. Video witnessing does not count, though, if the person answered yes to a required screening question about impairment or needing help with daily care, or was a vulnerable adult, meaning someone whose disability or aging impaired their ability to care for themselves. A codicil, which is an amendment to a will, must follow the same steps.
A handwritten will is valid in Florida only if it was signed and witnessed the same way. A will signed by someone who was not a Florida resident at the time is valid here if it was valid where it was signed, unless it was an unwitnessed handwritten will or an oral will. A forged signature fails the first requirement, because the person never signed. Evidence in a forgery dispute includes known samples of the person’s handwriting and testimony from anyone who claims to have watched the signing.
A Florida will can also include a self-proving affidavit, a notarized statement the person and both witnesses sign confirming that the will was signed properly. That affidavit, or the oath of an attesting witness taken before a circuit judge, court-appointed commissioner, or clerk, is enough to show the will was properly signed unless the challenger proves otherwise. The challenger then has to prove the grounds for the contest, except where the presumption of undue influence or an earlier incompetency ruling shifts that burden to the person defending the will.
Who Can Contest a Will in Florida
Only an interested person can bring a will contest. Florida defines an interested person as anyone who “may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Beneficiaries named in the will, heirs who would inherit if the will failed, and beneficiaries under an earlier will fit that description when the outcome would change what they receive. Florida’s statute on revoking probate names beneficiaries under a prior will expressly.
Two other rules matter. Florida law bars any will contest until the person who made the will has died. And a no-contest clause, meaning a line in a will threatening to cut off anyone who challenges it, cannot be enforced against an interested person who contests the will in Florida. The clause cannot take away a challenger’s inheritance for contesting.
Florida’s Deadline to Object Is Short
After the court opens the estate, the personal representative, the person the court appoints to manage the estate, must serve a notice of administration on the surviving spouse, the beneficiaries, and certain others. An interested person who is served with that notice must file an objection to the will within three months after the notice is served, or the objection is forever barred. If you waived service of the notice, the three months run from the date your waiver is filed. Florida allows only one exception: estoppel, which requires showing that the personal representative misstated the deadline and that you relied on that misstatement to your harm.
Florida also sets an outer limit. Every objection to a will’s validity must be filed by the earlier of the personal representative’s final discharge or one year after service of the notice of administration.
Some people lose the right to object even sooner. Letters of administration are the court’s written authority for the personal representative to act. Formal notice is a method of service set by the Florida Probate Rules. If you were served with formal notice of the petition to open the estate before those letters issued, or if you waived notice of that petition, you can challenge the will only in the proceedings that come before the letters.
What Happens if a Will Contest Succeeds
The result depends on what the court finds. When fraud, duress, mistake, or undue influence tainted only part of a will, Florida voids that part and enforces the rest, as long as the rest is otherwise valid. When the whole will falls, an earlier valid will can take its place. In the same capacity case discussed above, the probate court rejected a later will and codicil signed during months of incapacity and admitted the person’s earlier will and codicil. If no valid will remains, Florida’s intestate succession laws decide who inherits.
While a petition to revoke probate is pending, the personal representative keeps administering the estate but cannot distribute property against the rights of the people who would inherit without the challenged will. A buyer who paid the personal representative for estate property in good faith before the court’s revocation order keeps that property.
Talk With Staples Law Group About a Disputed Will
Since 1973, our firm has served families in Pensacola. We can review the will, the probate file, and the records from the months around the signing, then explain your options and the deadlines that apply to you. Contact Staples Law Group today to schedule a consultation.