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Probate is the process of executing a decedent’s will and distributing their assets to beneficiaries. While having a will is an important part of estate planning that ensures your loved ones know how you would like your estate to be handled, sometimes family members disagree about executing the will. When this happens, the will can be formally challenged in a process called contested probate. We discuss contested probate in detail below.  

Understanding Probate

Contested probate occurs when anyone with a vested interest in the decedent’s last will and testament formally challenges its validity. Someone may challenge a will if they believe they were unjustly removed from it, it was not properly executed, or it was inaccurately drafted. When probate is contested, a formal challenge (or petition) is submitted to the probate court, and a judge decides on the will’s validity. 

 

Reasons for contesting a will 

There are several reasons someone may contest a will. In these situations, the burden of proof lies with the person challenging the will. 

Validating the document 

For a will to be valid in Florida, it must meet the requirements stated in Florida Statute 732.502, such as being signed at the end of the document by the decedent and two witnesses. If the document was not properly signed or witnessed, it could be contested or revoked. 

Undue influence 

Undue influence is one of the most common ways wills are contested. Undue influence means that the will was drafted or altered due to forceful manipulation by someone who would substantially benefit from it. The person challenging the will must offer evidence that the decedent was pressured or persuaded into drafting the will in a particular way to benefit another person who was active in its creation. 

Improper removal

If someone believes they were unjustly removed from someone’s will, they can dispute it. The person may prove they were included in a previous version and that the decedent was removed by mistake or unjustly.

Capacity

The person must be of sound mind and full mental capacity to draft a will. If someone proves that the decedent was not fully aware of the will they were preparing, it could be challenged and considered invalid. The person challenging the will would have to provide evidence that the decedent had a persistent condition such as dementia or Alzheimer’s that prevented them from signing the document willfully. They may also provide evidence that the decedent suffered from delusion, meaning they were legally “insane,” which would invalidate the entire will. 

Under duress

If it is proven that someone signed or modified a will under the threat of physical harm to themselves or a loved one, the will could be challenged in court. 

Fraud

A fraudulent will is made under false pretenses, such as drafting a will based on false information from a noted beneficiary.

 

How to contest a will 

Generally, a will can be contested within 90 days of the notice of administration, the formal start of the probate process. Beneficiaries or other interested parties may challenge a will. A formal petition must be presented to the probate court where probate is taking place (the county where the decedent resided). The petition should specify whether the will should be revoked, modified, or invalidated and why the will is challenged. Once the estate is notified, the case will be settled or go to a hearing for a judge to determine the will’s validity. 

Florida contested probate attorneys 

Challenging a will can be a complex legal process, so it is beneficial to have experienced probate attorneys at The Boutty Law Firm represent you to contest a will’s validity. Call us today at 407-710-0461 for a consultation.