By: Barry E. Haimo, Esq.
May 18, 2015
Can Someone Challenge My Will After I Die?
BARRY HAIMO: Yes, somebody may challenge the validity of a will. It requires proof of misconduct on the part of various people who could be involved in the execution of a will, including the attorney, including the beneficiaries, such as undue influence. At the end of the day, yes, you can contest a will.
Though it is rare, it is possible to challenge a will in court. If a person has reason to believe that the will does not accurately represent your wishes, they can contest the validity of the will.
If a will fails to meet certain requirements, would-be heirs or beneficiaries can attempt to prove in probate court that a will was written under improper conditions. There are several grounds that an individual can argue in order to get a will thrown out.
Mental State. For a person to create a Last Will and Testament, he or she must have the requisite mental capacity to do so. In Florida, this means that he or she must understand the nature of their estate, their assets, their familial relationships, and how the document intends to address them. In other words, they must have the mental capacity to know what they are doing and understand the consequences of doing so.
Additionally, the person writing the will should be aware of the people for which they normally are expected to provide (i.e. their spouse, children, etc.).The will writer should also be aware of the things they own, and able to decide how they want to distribute their property.
Probate courts generally require proof of significantly advanced mental difficulties before they rule a will invalid on these grounds. Importantly, the capacity of the testator, or creator of the will, is determined at the time of the execution of the document. This is important for two reasons: first, people can wave in and out of having the requisite mental capacity, which makes it difficult to contest. Second, people frequently pass away years after executing the document. Since the document is only submitted to the court upon death, it’s difficult to contest the mental state of someone at a particular moment in time many years ago.
Fraud or Undue Influence. Wills can be ruled invalid if the probate court finds that they were drafted under fraudulent conditions. Forgery, of course, is grounds for dismissing a will. A will may also be challenged if someone close to the decedent is suspected of manipulation—known as “undue influence.” Typically, undue influence occurs when a person takes advantage of a position of trust and confidence to benefit themselves.
The clearest example of this would be if a caregiver or adult somehow coerced or took advantage of the decedent in order to obtain a large portion (or all) of their estate.
Contents of the Will. For a will to be legally valid, it needs to meet a few requirements. A will must expressly state that it is the desire of the person who wrote it. A will also needs substantive, dispositive provisions, such as a clause leaving property to someone, or appointing a person as a legal guardian of a child. Additionally, a will needs to name an executor— called a “personal representative”—in Florida. This person will be responsible for carrying out the terms of the will as needed. However, like beneficiaries, under Florida law, if no personal representative is named, the courts will appoint one by statute.
Witnesses. Under Florida law, there must be two witnesses to the signing of a will, and they must both sign it in the presence of the testator and the presence of each other. You are not required to have the will notarized, although this is recommended to make the probate process quicker.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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