Will Contests


A will contest is an adversary proceeding controlled by Florida’s Probate Code and the Florida Rules of Civil Procedure. Unlike other cases, will contests are filed and litigated entirely within a probate proceeding. A will is normally contested in order to strip the beneficiaries of their rights under it and to legally vest the property of the estate to the heirs at law instead, who were likely excluded from the will. A will may also be contested when more than one version of the will exists and it is therefore necessary to determine which version should be probated. Generally, one who receives and keeps a gift under a will is estopped to contest the will validity. Thus, a beneficiary must renounce or give up the benefits under a will I he wishes to contest its validity. This is premised on the idea that someone cannot eat his cake and have it too.

Who can Contest a Will?

The initial matter determined in any will contest is whether the person who is contesting the will has the legal right to challenge it. Pursuant to the Florida Probate Code anyone who has a right to property or a claim against the estate, including any heirs such as children and creditors of a spouse have standing to contest a will. Conversely, a personal representative generally has no right to contest the will and will be instantly disqualified from serving as the personal representative should they contest any single part of the will.

When can a Will Contest be Brought?

A will can be contested either before it has been formally admitted to probate or after. However, usually a will contest is brought through the filing of a Petition for Revocation of Probate which is served on the personal representative and all interested people. A will cannot be contested before the testator dies.

What are the Grounds to Contest a Will?

Grounds to contest a will may be pursued when any part of the will or codicil:

  1. Was not signed with all of the lawful formalities
  2. Was signed by the maker when he/she wasn’t competent to do so
  3. Was signed as a result of fraud, undue influence, duress or mistake
  4. Was revoked by the maker or
  5. Is not genuine

However, It does not constitute sufficient grounds to set aside a will merely because the testator was infatuated with the main beneficiary of the will or because he/she was an alcoholic or addicted to drugs.

Is an Agreement not to Contest a Will Valid?

Yes. The probate division holds jurisdiction to consider, ratify, and make an agreement between the parties not to contest a will. Provided that the parties are competent, an arms length agreement between interest persons who agree to refrain from contesting a will that distributes assets will be enforced by the court since it promotes settlement and reduces litigation. Thus, agreements to not a contest a will are not against public policy and may be entered into while the maker of the will is still living as well as after his death. Similarly an agreement to waive all claims against the maker of the will’s estate in exchange for a portion of the property distributed under the will also be upheld.

Are Penalty Provisions in Wills Allowed?

No. A provision in a will that penalizes someone who later contests the will is unenforceable.

Burden of Proof

The initial burden of proof is on the proponent of the will to show that it was lawfully executed and attested to. Thereafter, the party contesting the will must demonstrate the grounds to overturn or oppose the will.

Speak to a Probate Attorney

Will contests are uniquely fact specific and should not be filed on a whim. Speak to a Miami probate attorney today to discuss your case.

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