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Contested Probate: Challenging A Will

If a deceased person’s heir is unhappy with the distribution of property under the deceased person’s will, he or she may decide to contest probate and have the will invalidated. There are 5 different theories under which a will can be determine invalid. Below is an overview of those 5 theories.

Formalities

Each state, including Florida, has certain requirements for the creation of a will. These requirements include:

  • The will must be signed at the end by the person who is making the will or by a person directed by the person making the will in his or her presence.
  • Two attesting witnesses must sign the will in the presence of the person making the will and in the presence of each other.
  • Each witness must be competent.
  • Neither witness can be interested meaning that the witness cannot be inheriting any property under the will.

Furthermore, the law makes allowances for certain circumstances where the person making the will marries, has a child, adopts, or divorces after the will is made.

Testamentary Capacity

In order for a will to be valid, the person making the will must have what is referred to as “testamentary capacity.” In short, the person making the will must understand who he or she is, must understand what property he or she has, and must understand that the will accurately represents how he or she wants his or her property distributed after his or her death.

Fraud, Duress, and Undue Influence

Fraud, duress, and undue influence is a much more serious kind of will contest. By contesting a will under one of these theories, you are alleging that the person who will inherit under the will used their influence to overcome the will of the deceased person in order to make them execute a will naming the influencer as the beneficiary.

To prove that undue influence occurred, the person contesting the will must show that the deceased person and the influencer had a confidential relationship. A confidential relationship may be legal, moral, social, domestic, or personal in nature. This would include relationships such as spouses, physical and patient, attorney and client, etc.

If the person contesting the will can show a confidential relationship, then the burden shifts to the influencer to prove that he or she did not procure the will through undue influence.

The Will is Invalid. Now what?

If a will is held to be invalid after a will contest, one of two things will happen. If the deceased person executed another will prior to the invalidated will, the prior will is admitted to probate, and the property is distributed according to that will. However, if the person had no prior will or if that prior will was revoked by an act other than the execution of the now invalidated will, the property will pass by the laws to intestacy (the laws governing the distribution of a person’s property when there is no will).

For more information on Challenging A Will In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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