How Can I Challenge a Will in Florida?

A will is supposed to represent your loved one’s final decree for the distribution of his or her estate, but what can you do if you believe that there is a possibility that the will does not accurately represent the decedent’s last wishes?  Especially with high-net-worth decedents, there are sometimes valid concerns of fraud or other grounds for contesting a will.

In Florida, an individual can challenge a will before the conclusion of the probate of the decedent’s estate.  Probate is the process of submitting a will and any related documents to a specialized court, which assigns authority to a personal representative for the purpose of settling and distributing the estate using letters of administration.  The probate court also determines the validity of the will.

But what if you have concerns about the validity of your loved one’s will?  In Florida, an attorney can challenge a will for a number of reasons:

1. Lack of Capacity: In order to make a valid will, Florida law requires that the testator (i.e., ther person making the will) must be mentally competent to make the will, as well as to understand the nature of what he or she is doing, including what assets are going to whom. “Lack of capacity” is often established through a previous diagnosis of an ailment such as Alzheimer’s, dementia, or psychosis, but can also be proven through witness testimony of the decedent’s irrational actions around the time the will was created.

2. Undue Influence: Sometimes, a testator is compelled to execute a will due to the pressure of someone close to him, such as a relative or perhaps a caregiver. Undue influence is often seen in the cases of high net worth individuals who suddenly disrupt an long-established estate plan structured to benefit friends and family, with the allegation that someone close to the decedent took advantage of this close relationship and convinced the vulnerable testator to make changes to benefit that individual specifically.  Florida law dictates that in certain instances of active procurement (i.e., where the new beneficiary actively seeks to have the will changed and the beneficiary is a substantial beneficiary of the new will), the burden of proof shifts to the new substantial beneficiary who must prove that the new will was not a product of undue influence.

3. Will Made Under Duress: As mentioned during the discussion above regarding Undue Influence, there are many different ways a testator could be swayed to amend his will in ways that are contrary to his or her wishes or a previously established estate plan. One potential example is that of a caretaker threatening to withhold care unless the testator amends his will.  Both duress and undue influence are currently in the news as the family of Hall of Fame baseball player–Ernie Banks–is contesting his will, which was changed three months before his death to give all of his assets to his live-in caretaker.

4. Lack of Formalities: Florida courts do not want to hear frivolous claims about the validity of a will. For this reason, there are strict rules on what constitutes a valid will.  A valid will must have the testator’s signature, and it also must have the signatures of two witnesses.  These signatures must also be notarized.  It is also important to note that holographic wills (i.e., a will handwritten by the testator), are not valid in Florida.  Furthermore, even if the will was valid in another state where it was originally executed, Florida will not accept the will if it lacks the formalities required under Florida law.

5. Insane Delusion: According to the Florida Supreme Court, an insane delusion is a “fixed false belief without hypothesis, having no foundation in reality.” Hooper v. Stokes, 107 Fla. 607 (1933).  Further, such a delusion “must be persistently adhered to against all evidence and reason.” In re Estate of Edwards, 433 So.2d 1349 (Fla. 5th DCA 1983).  Where a will is executed due to an insane delusion (e.g., the testator comes to distrust members of his family despite no evidence to support such feelings), it may be appropriate to contest the will.

6. Fraud: Sometimes, a testator may make decisions as to the distribution of his estate due to misrepresentation by or about a potential beneficiary. For example, a spouse may feed false information to the testator about one of his children, which subsequently convinces the testator that the allegedly offending child should be removed from the will.

Many of the above grounds for challenging a will can currently be seen in the case of Tom Benson, owner of the New Orleans Saints and New Orleans Pelicans and the wealthiest person in the State of Louisiana. Mr. Benson’s children are challenging his recently-amended will on allegations of mental incapacity, fraud, and undue influence on the part of his third wife.

As cases like Mr. Benson’s indicate, the stakes can be very high when it comes to estate planning for high net worth individuals.  If you or someone you know is concerned that a loved one’s will may be subject to a will contest or you or someone you know would like to contest a will, please do not hesitate to contact the experienced, knowledgeable team at Chepenik Trushin LLP for all of your estate planning and probate needs.