Florida Will Contest Attorneys
Our Plant City probate lawyers are ready to assist you in making sure that a will is truly the last will and testament of the deceased. There are many considerations when deciding to contest a will.
Contesting a Will in Florida
Burden of Proof
Florida law provides that in cases contesting the validity of a will, the burden shall be upon the persons supporting the validity of the will to establish the will’s correct signing and witnessing. Thereafter, the persons opposing the will have the burden of establishing some grounds on which the probate of the will is opposed or revocation is sought. Thus, in a will contest there are many issues that come into play that affect the validity of the last will and testament.
Signing and Witnesses
In Florida, wills and trusts may be contested if the documents are not executed (signed and witnessed) as provided by law. F.S. 732.502 sets out the requirements for the execution of a valid will as follows:
“Every will must be in writing and executed as follows:
(1)(a) Testator's signature.--
1. The testator must sign the will at the end; or
2. The testator's name must be subscribed at the end of the will by some other person in the testator's presence and by the testator's direction.
(b) Witnesses.--The testator's:
1. Signing, or
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator's name to it,
must be in the presence of at least two attesting witnesses.
(c) Witnesses' signatures.--The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.”
Also, any document that is signed by a person who is eligible for military legal assistance as a military will in accordance with federal law is a valid will in Florida. In addition, there is no set form for a will as long as the document is signed with the formalities required by law. Any amendments to a will must also be executed with the same formalities as an original will.
Of Age and Sound Mind
Florida Statute 732.501 provides that the maker of a will must be of sound mind and be at least 18 years of age.
Florida Statute 732.503 provides that a will may be proved by the attachment of a notarized affidavit of the maker and the witnesses, so that the witnesses do not have to be found after the maker’s death. The law sets out the form of the notary certificate to make a will self-proving.
A Will Contest Must be Filed Promptly
A proceeding to contest a will must be brought within definite time limits. Failing to bring a proceeding to call into question the validity of the will results in a loss of the right to contest the will.
To make a valid will a person must be able to understand (1) the nature and extent of the person’s property, (2) who the persons are that would inherit if there wasn't a will, and (3) the practical effect of the will.
Just being advanced in age, feeble, lack of memory, or changing one’s mind are not enough to invalidate a will. Competency to make a will is presumed and the burden of proving that a person lacked capacity is on the person attacking the will.
Of course, if a person has been declared incapacitated by a court in a guardianship proceeding, then the law also presumes the person cannot make a will, but this presumption can be overcome by evidence to the contrary. Obviously, in a will contest case there will be evidence from both sides regarding the deceased’s mental condition before and after the signing of the will.
When the beneficiary under a will is in a special relationship of trust with the maker of the will and the beneficiary is active in assisting in the making of the will, a presumption of undue influence arises. This is a complex area of law.
Suffice it to say, that a will can be set aside if a beneficiary took advantage of the maker of a will to substitute the beneficiary’s wishes for those of the maker of the will. If the beneficiary uses excess persuasion, coercion, or force that destroys or hampers the free agency and will power of the maker of a will, then the will can be set aside by the court.
These are complicated cases that may involve the testimony of expert witnesses such as psychologists, attorneys who prepared and witnessed the will and others who had an opportunity to observe whether there was any undue influence upon the maker of the will.
Byrd & Barnhill Will Contest Attorneys Offer Case Evaluation
As you can see, this area of the law is complex and the sooner you obtain the legal services of an experienced probate lawyer, the better prepare you will be in a will contest. Call now for your confidential consultation.