Most experienced attorneys urge their clients to create an estate plan, including a will and possibly a trust. An estate plan will help avoid the kind of family strife that might arise over the distribution of assets after the person has passed away. However, even an expertly crafted estate plan cannot anticipate every issue that might come up between the heirs. The only way to resolve these disputes is by commencing a lawsuit in the proper probate court and presenting the issues to a probate judge. These proceedings are usually referred to as “will contests.”
A will is meant to give legal power to the last wishes of the deceased, and it’s not easy to convince a court to decide it should disregard those wishes. The requirements for a will contest are strict.
A will contest can only be started by an heir named in the will or a person with a potential claim as an heir of the estate. The will contest petition must specify the grounds that may be adequate reasons for invalidating the will or one or more specific bequests. The two most common grounds for attacking a will are lack of testamentary capacity and undue influence.
Lack of testamentary capacity
A Florida will is not valid if the person making the will (the “testator) lacked sufficient mental capacity to understand the purpose of the will or the legal effect of the will. Alzheimer’s disease and dementia are the two most common medical reasons for claiming the testator lacked the adequate mental capacity to make a will.
A will is supposed to be the product of the testator’s free act and deed. If one of the heirs receiving a bequest in the will established an overly close and controlling relationship with the testator, and if that relationship prevented the testator from exercising his or her free will in making bequests to other potential heirs, any bequest to the heir exercising the undue influence will be invalidated.
Fraud is probably the third most common reason for attacking the legality of a will. Occasionally, an heir will use a misstatement of material fact to convince the testator to make a bequest that would otherwise be omitted from the will. If fraud is proved, the court may either invalidate one or more specific bequests or invalidate the entire will.
Anyone concerned about the validity of a will left by a family member or close friend may wish to consult an attorney who is experienced in estate litigation. A knowledgeable lawyer can evaluate the evidence and provide an opinion on the likelihood of succeeding in a will contest.