How Can I Contest or Dispute a Will During Probate?

By Stokes McMillan Antunez Martinez-Lejarza P.A. on December 4, 2023

Can I Contest or Dispute a Will During Probate?

Contesting or disputing a will is a complex legal process that should only be pursued with the help of an experienced probate litigation attorney. There are specific grounds and procedures for challenging the validity of a will during probate, which varies by state. This article provides an overview of how and when you can contest a will in Florida probate court.

Stokes McMillan Antúnez Martinez-Lejarza P.A. is a full-service Florida trusts and estates law firm providing services including, but not limited to, probate, estate planning, trust & estate administration, and trust and estate litigation. If you have any questions or wish to hire our firm, please contact us.

What is Probate?

Probate is the court-supervised process for administering a deceased person’s estate according to the terms of their will. The probate court oversees validating the will, inventorying assets, paying debts and taxes, and distributing property to the will’s beneficiaries.

If there is no will, the estate is distributed according to Florida’s intestacy laws. Probate ensures the decedent’s wishes are carried out and heirs receive their proper share of inheritance. It also provides a process for resolving disputes over the estate.

Who Can Contest a Will in Florida?

Under Florida law, the following people have legal standing to contest a will:

Heirs at law – These are individuals who would inherit from the estate under intestacy laws, such as a surviving spouse, children, or other close relatives.
Beneficiaries named in a prior will – If you were named as a beneficiary in a previous will, but excluded or given reduced inheritance in the current will being probated.
Beneficiaries named in the current will – You can contest provisions in a will that reduce your share compared to another beneficiary.
Personal representative named in prior will – The nominated personal representative in an earlier will can object to being removed or replaced.

How Does Contesting a Will Work?

There is a specific process for disputing a will in Florida:

1. File a Caveat

Once a petition for administration is filed with the probate court, you can file a caveat objecting to probate of the will. This triggers a hold on any further action until a hearing is held.

2. Notify Interested Parties

You must provide notice to anyone named in the will and intestate heirs of your intent to contest the will’s validity.

3. Claim Standing

To contest the will, you must have proper legal standing as an interested party, such as an heir or named beneficiary.

4. File Objections

You or your probate litigation attorney must file a written objection with the factual and legal grounds for your challenge to the will.

5. Attend Hearing

The court will hold a hearing to evaluate the objections and determine whether there are valid reasons to deny probate of the will.

6. Offer Evidence

At the hearing, you can present evidence and call witnesses to support your claims against the will’s validity. The personal representative will defend the will.

7. Court Ruling

The judge will decide whether you established adequate grounds to contest the will and make a ruling on whether probate can proceed.

8. Appeal

If the judge rules against you, you may be able to file an appeal to challenge the order within a limited time period.

When Can You Contest a Will in Florida?

There are specific grounds on which you can contest a Florida will:

Lack of Testamentary Capacity

You can argue the testator (person making the will) lacked sound mind and legal capacity when signing it. Factors include dementia, Alzheimer’s disease, delirium, influence of medication, etc.

Undue Influence

Asserting someone exerted undue influence over the testator, causing them to make decisions against their wishes. Must prove elements of motive, opportunity, susceptibility, and result.

Fraud

Claims the will was a product of fraud if testator was intentionally tricked or deceived through material misrepresentations.

Duress or Coercion

Allegations the testator was forced or coerced through threats of harm, abuse, or other duress into making dispositions against their will.

Improper Execution

Challenging the will based on failure to follow Florida laws on proper execution, such as missing signatures of testator or witnesses.

Discovery of New Will

A more recent will is discovered that revokes and supersedes the contested will.

Disqualification of Beneficiary

Seeking to disqualify a beneficiary who caused testator’s death or otherwise became disqualified after the will’s signing.

What Is Probate Court in Florida?

Probate courts in Florida are specialized state courts that solely handle probate of wills and estates. Probate judges are trained in this complex area of law. Many counties have a dedicated probate division within their circuit court system.

Larger Florida counties may have separate probate courts with multiple judges, while smaller counties likely have just one probate judge. Miami-Dade County has the largest probate court in Florida.

Probate courts are courts of equity, meaning judges can deviate from strict rules of law to make fair rulings and prevent injustice. However, probate courts still rely on Florida statutes, case law precedent, and evidential standards when evaluating will contests.

Contesting a Will in Florida: Probate Disputes and Litigation

Contesting a will often leads to heated probate disputes among family members and beneficiaries. Emotions and money tend to run high in these cases. Major probate disputes in Florida include:

Will contests – Challenging the validity of a will based on incapacity, undue influence, fraud, etc.
Trust contests – Contesting the creation or terms of a revocable living trust.
Elective share battles – Disputes over elective share rights of disinherited spouses.
Breach of fiduciary duty claims – Seeking damages against a personal representative or trustee for financial misconduct or fraud.
Petitions for accounting – Demanding a formal accounting of estate transactions and inventory.
Heirship determinations – Resolving uncertainties about legal heirs if no will exists.
Will interpretations – Seeking clarification from the court on ambiguities in a will or trust.

These disputes often require probate litigation with extensive pre-trial discovery, multi-day trials, and expert testimony on complex legal and medical issues. Having an experienced probate litigation lawyer on your side is crucial.

How an Attorney Can Help Contest a Will in Florida

Pursuing a will contest without legal counsel is extremely unwise. Florida probate rules and procedures are complex. Just filing proper objections requires knowledge.

A probate litigation attorney can help you:

Evaluate if you have grounds to contest a will in Florida and chance of prevailing.
Handle all filings and communications with the probate court.
Draft compelling legal arguments against the will.
Obtain medical records and statements to prove incapacity.
Question witnesses and personal representative.
Present persuasive evidence and testimony at trial.
Negotiate favorable settlement of your will dispute.
Appeal an unfavorable ruling.

Contesting a will can tear families apart. An experienced probate litigation lawyer works to resolve your dispute efficiently and tactfully through settlement when possible. However, we will aggressively fight for your rights in court if needed.

Frequently Asked Questions

1. What is the deadline to contest a will in Florida?

You must file your initial caveat with the court before the will is admitted to probate, typically within 20 days after the petition is filed.

2. How much does it cost to contest a will?

The costs can easily exceed $30,000 through a trial. Much depends on the complexity of the case and amount of discovery needed.

3. What happens if you successfully contest a will?

If the judge invalidates the contested will, the estate would be distributed according to any prior valid wills or Florida’s intestacy laws if no will exists.

4. Can you contest a will after probate?

It becomes much harder to contest a will after it is already admitted to probate. However, there may still be grounds in some cases.

5. How long can a will be contested after death?

There is no fixed statute of limitations in Florida. Timing depends on when the initial petition was filed and when interested parties received notice.

Choosing a Probate Attorney

This overview of contesting a will in probate should help you better understand the options and process. But every case is different. For professional advice on your specific situation, consult with an experienced Florida probate litigation attorney today.

DISCLAIMER

This article was partly generated by the use of artificial intelligence or AI, and is provided as general information for educational purposes only. This article is not intended to provide specific legal advice, and should not be relied upon as a substitute for competent advice from a licensed attorney. To speak with one of our attorneys all you have to do is click here.If you’re interested in more in-depth ruminations on this area of the law written 100% by a live human being, visit the Florida Probate & Trust Litigation Blog by going to the home page for firm partner Juan Antunez.