A will can be challenged only after death, not while the maker of the will is still alive, although the facts surrounding the creation of the will can be gathered and preserved for subsequent litigation. After death, the Personal Representative will issue a Notice of Administration, starting a 90-day period to challenge a will or the Personal Representative's appointment.
Can a will be challenged if it was not prepared properly?
Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements. A will can also be thrown out if it can be proven to be a forgery or to have been tampered with. Florida courts have declared wills to be invalid that were not witnessed properly, including a situation where the witness was in an adjoining room when the will was signed and not in the immediate presence of the testator.
Can a will be challenged if the maker was suffering from dementia or Alzheimer's?
Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer's, or psychosis, or through the testimony of witnesses as to the irrational conduct of the testator around the time the will was executed.
Can a will be challenged if another person encouraged the preparation of a will?
Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who "befriend" the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live-in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.
Can a will that leaves everything to a second spouse instead of children from a first marriage be challenged?
Florida courts are reluctant to overturn bequests to a surviving spouse under an undue influence claim, given the importance of marriage in our society. Nonetheless, egregious facts could warrant striking of a bequest to a surviving spouse, although the surviving spouse will be entitled to the elective share, absent a valid marital agreement to the contrary.
I want to challenge a will, but the will says that anyone who challenges the will is automatically entitled to nothing. I am already entitled to
Florida does not recognize "no contest" clauses in wills or trusts. In any litigation in Florida over a will or trust, such a clause will be ignored.
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FLORIDA ESTATE PLANNING, PROBATE, GUARDIANSHIP, & ELDER LAW IS COMPLEX AND CANNOT BE COVERED COMPLETELY IN AN ARTICLE. WHENEVER A SPECIFIC QUESTION OR PROBLEM ARISES, YOU SHOULD CONSULT AN ATTORNEY.
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