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Contesting Wills in South Florida

Choosing to contest a will is never an easy decision and can add to the heartache you may already feel at this time. For many heirs and beneficiaries, contesting the case is the only way to protect their loved one’s estate and their inheritances.

A Last Will and Testament is usually revealed upon death as part of the probate administration. When this occurs, heirs, beneficiaries, and other parties may decide to contest the will and or the execution of that will. An experienced Florida probate lawyer can help you protect your interests.

Reasons for Contesting a Will in the State of Florida

While there are numerous reasons to contest a will, the most common reasons include:

  • Undue Influence
  • Insane Delusion
  • Duress
  • Lack of Testamentary Capacity
  • Fraud
  • Breach of Fiduciary Duty
  • Improper Will Execution
  • Existence of a Later Will

Deadlines for Contesting a Will

The law in Florida specifies that beneficiaries, heirs or any potential claimants have only 90 days to file suit contesting a will. If a Formal Notice of Administration was acknowledged before the Will was admitted into probate, this period is reduced to 20 days. An experienced and skilled Florida probate litigation lawyer can ensure that you do not miss any critical deadlines when seeking to contest a will.

Will Contests and Improper Execution

If you are considering contesting a will in the State of Florida, it is important to retain the services of experienced Florida probate litigation lawyers. Your probate litigation attorney will conduct an initial review of your loved one’s Will to determine if it meets Florida’s Will execution requirements. If the Will was executed improperly, Kelley/Uustal can help you contest it on technical grounds.

In the State of Florida, a Will is considered valid only if it meets the following criteria:

  • Testator must be of sound body and mind
  • Testator must be at least 18 years old
  • The Will must be in writing
  • A testator is required to sign the Will (or another person at the testator’s direction)
  • The signing of the Will must be acknowledged by the testator with two witnesses present
  • The Will must be signed by two witnesses in each other’s presence and the presence of the testator

Lack of Testamentary Capacity

One qualification for a properly executed will under Florida law is that the testator be "of sound mind." According to a Florida Supreme Court judgment from 1953, in order to have testamentary capacity, the testator must be able to understand:

  • The practical effect of a Will
  • The type and extent of his property
  • The relationship of his or her heirs and beneficiaries

Testamentary capacity is a low standard, and courts in Florida have found that old age, memory problems, physical ailments and shifting judgment alone do not establish a shortage of testamentary capacity. The Florida Supreme Court has stated "even a lunatic may make a Will . . . in a lucid interval."

Establishing a lack of testamentary capacity is a difficult task, and the burden of proving a lack of testamentary capacity falls on the person contesting the Will. To establish a lack of testamentary capacity, a beneficiary, heir or other claimant must show that whatever mental infirmity the testator suffered from was permanent and continuing, and no lucid interval had occurred at the time the Will was executed.

Insane Delusion

Another form of incapacity is what the Florida Supreme Court refers to as “insane delusion.” The court defines this as a false, fixed belief having no foundation in reality and without hypothesis. Other state courts have further defined insane delusion as requiring a false belief which is adhered to persistently against all reason and evidence.

An insane delusion may affect a part of or all of a Will. An entire Will can be rendered invalid by a proven lack of testamentary capacity. Meeting the heavy burden necessary to contest a Will successfully under Florida law requires the skill and expertise of a knowledgeable probate litigator.

Undue Influence

A beneficiary or heir may also contest a Will under Florida law if the testator was unduly influenced. Undue influence exists when the testator did not act voluntarily because they were coerced by the outside influences, pressure, or persuasion of another. The burden of establishing undue influence is on the person contesting the Will.

Undue influence may be shown by establishing that the influencing person:

  1. Stands to gain substantially from the Will
  2. Had a confidential relationship to the testator/decedent, and
  3. Had an active role in obtaining the Will

Should the person contesting the Will successfully prove that a court should presume undue influence occurred, it is up to the other party to prove otherwise.


Under Florida law, a Will is declared invalid if it was acquired through fraud. The testator’s wishes are defeated through dishonesty. Fraud generally contains the following elements:

  • Dishonest representations to the testator of material facts,
  • The perpetrator had knowledge that the representations are untrue
  • The perpetrator intended for the representations to be acted upon
  • Resulting injury.

As applied to Wills, fraud falls into two categories. Fraud in the inducement occurs when the testator was knowingly misled by a material fact that caused the testator to make a different decision than he or she otherwise would have made. Fraud in the execution occurs when the perpetrator told the testator to sign a document without them knowing that what they were signing was a Will.

Florida Probate Litigation Lawyers

Since the burden of proof lies with the individual contesting the Will, it is imperative that you retain the services of an experienced Florida probate litigation law firm. The legal team at Kelley/Uustal has successfully represented heirs, beneficiaries, and other interested individuals, helping them protect their inheritances and their loved one’s estate.

If you need to contest a Will or contest a trust in Fort Lauderdale, Miami, Daytona Beach, West Palm Beach, or anywhere throughout the State of Florida, call the Florida probate litigation attorneys at Kelley/Uustal today for a complimentary case evaluation.

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