How do you contest a will where you had a loving relationship with your mother and she always said she would leave everything to you and your siblings. After she died, you discover she had recently written a new will, leaving everything to her housekeeper. Is there anything you can do? If you believe a loved one’s will is not valid, you may be able to contest the will. But proving a will is invalid is difficult and this process should be undertaken only if you are sure there is something wrong.
Only certain people can contest a will. For example, you can’t contest your friend’s will just because you believe she shouldn’t have left her estate to her niece. You must be an interested party. This means you would have inherited from your loved one if there was no will or you are a beneficiary of the will.
In addition, you cannot contest a will solely because you think the distribution is unfair. A will can be contested only in certain circumstances; there must be evidence that something is wrong with the will. The following are the situations in which a will may be contested:
- Mental incapacity. Florida law requires that a person making a will mush have “mental capacity” to make a will. Usually, incompetence is established through a prior medical diagnosis of dementia, senility, Alzheimer’s, or psychosis. Lack of mental capacity can also be shown through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was written.
- Undue Influence. If you believe another person exerted undue influence over your loved one and induced your loved one to change the distribution under his or her will, you may contest the will based on undue influence. Generally, the person contesting the will is required to prove the person exerted undue influence. However, if the person had a fiduciary relationship with your loved one, that person may have to prove that there was no undue influence. People who might have a fiduciary relationship include a child, a spouse, or someone with a power of attorney.
- Fraud. Arguing your loved one was fraudulently induced into signing his or her will is another way to contest a will. Fraud occurred if your loved one signed a will without realizing it was a will. It could also happen if someone gave your loved one misinformation that caused him or her to change the distribution in the will.
- Lack of Proper Execution. You can contest a will on the basis that it was not executed properly. Each state has laws dictating what makes a will valid. In Florida, the signing of the will must be witnessed by two unrelated and independent witnesses. If the document was not witnessed properly, it is invalid. A Florida probate court requires that you obtain an affidavit from at least one of the witnesses to establish that the person making the will, and the two unrelated witnesses all observed each other sign the will. To avoid the requirement to locate one of the witnesses, Florida probate law allows for the use of a “self-proof affidavit.” The self proof affidavit is prepared and signed at the time the will is signed. The self proof affidavit requires the person making the will, both of the witnesses and the notary, to attest that they all watched each other sign the will. You also can contest a will on the basis that the signature is a forgery. In one case in which we were involved, we were able to prove, through expert testimony, that the ink in the pen used to sign the will was not in existence until years after the will was dated.
You can contest a will on the basis that there has been a breach of fiduciary duty by the personal representative of the probate estate. A breach of fiduciary duty can arise where there is (a) a failure of the personal representative of to follow the Florida Probate Code and Probate Rules of Procedure in the administration of the estate; (b) where the personal representative has engaged in probate fraud; (c) where the personal representative has made improper investments with the probate assets; (d) where the personal representative has engaged in self-dealing or other conflicts of interests; (e) where the personal representative is paid excessive compensation; or (f) where the personal representative’s negligence results in a financial loss to the probate estate. In any of these situations, the probate judge has the option of entering a judgment against the personal representative requiring the personal representative to reimburse the probate estate for its losses, or for the removal of the personal representative.
If you want to contest a will, you should contact your attorney as soon as reasonably possible, because you will need to file a claim with the Florida probate court. If you are an interested party, you should receive notice from the probate court that the will is being probated, and you should act immediately
If you are successful in invalidating a will, the court may reinstate your loved one’s prior will. If there is no earlier will, the probate estate assets may pass under the state’s intestate succession laws. Another alternative is for the probate court to invalidate just the portion of the will that is invalid, leaving the rest intact.
We can help you with your probate issues regardless of what they may be. No matter what your status, whether you are the personal representative, a beneficiary of the probate estate that is named in the will, or who is left out of the will, or a creditor with claims against the probate estate, Call us toll free at 1-866-510-9099, or email us at Info@TheColemanLawFirm.com.