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Consequences of a Will Contest

In Florida a will is one of the most important estate documents, as it allows a testator to memorialize his (or her) final wishes as to what should happen to his assets after his death. One of the reasons that a will is such a popular estate planning document is because there is great flexibility as to what a testator can direct in his will. The testator can name a personal representative who will be responsible for managing the estate once the testator passes away. In a will the testator can also very clearly state who should get specific parts of the testator’s estate. A testator can even name who he would prefer to serve as guardian to his minor children. Unfortunately, there are instances when a will that is submitted for probate does not actually reflect the true wishes of the testator. If you are an interested party in a will contest, it is important that you are represented by an experienced and skilled Fort Lauderdale will contest lawyer in order to ensure that your legal rights are protected.

Grounds for a Florida Will Contest

In Florida the main reasons that a will can be contested include lack of testamentary capacity, duress, and undue influence.

Lack of testamentary capacity. Under the Florida Probate Code, in order for a will to be valid the the person making the will, referred to as the testator, must have had testamentary capacity at the time the will was executed. This means that the testator must have been at least 18-years old and the testator must have been of sound mind. In other words, a testator how is so confused that he (or she) does not understand who his family members are, what property he owns, and the impact of making will would not have the mental capacity to make a legally binding will. As a Fort Lauderdale will contest lawyer will explain, in order to invalidate a will based on a lack of testamentary capacity the person objecting to the will must have evidence to support the claim. The evidence must support the assertion that the testator did not have the appropriate mental capacity at the time he executed the will. It does not matter that at some later point the testator became mentally incapacitated.

Undue influence. Undue influence is a broad term that describes a number of possible circumstances in which a will was made based on some sort of deception. Undue influence can mean that a friend, relative, or caregiver, for example, manipulated a defenseless testator into making a will that the testator would not have otherwise made. For example, a relative convinces a sick testator to disinherit all other family members.

Duress. Duress involves someone forcing a testator to make a will that he would not have otherwise made by making threats against the testator or actually physically harming the testator or someone the testator cares about.

Standing to Contest the Will

Under Florida law, in order to contest a will you must be an interest party. Generally speaking, interested parties include personal representatives, beneficiaries, next of kin, and beneficiaries of prior wills. Beneficiaries are those who are specifically named in the will such as family members, friends, or nonprofit organizations. Next of kin are those who would have the legal right to inherit the decedent’s assets in the absence of a valid will under Florida’s rules related to intestate succession. If you are not an interested party and therefore lack legal standing to contest a will, the circuit court judge in will not hear your petition to object to probating the will. If you believe you have grounds for a will challenge such as duress or testamentary capacity, but you are unsure as to whether or not you have legal standing, discuss your concerns with an experienced will contest attorney in Fort Lauderdale.

Consequences of a Will Contest

If a will contest is successful, there are 3 possible consequences:

  • Will invalidated, no other will. The court may invalidate the entire will. As a result, the estate will be administered as in intestate estate. This means that the decedent’s property will be distributed according to the rules of intestate succession. Instead of the property being distributed to beneficiaries listed in a will, the property will be distributed to the decedent’s legal heirs.
  • Will invalidated, prior will. The court may invalidate the entire will and probate a prior valid will.
  • Portions of the will invalidated. Sometimes the court will invalidated only certain terms and let the rest of the will stand. For example, if the court determines that a specific beneficiary exerted undue influence on the testator, the court may void the portions of the will that benefited that beneficiary.

In addition, a will contest will likely delay probate. This means that instead of the administration process taking 12 months, it may take longer. Furthermore, a will contest will likely result in additional expense to the estate, diminishing the assets available for paying debt and distributing to beneficiaries or heirs.

Contact the Law Offices of Stephen Bilkis & Associates

If you believe that the will of a loved one should be thrown out due to lack of testamentary capacity, undue influence, or for another reason, contact an experienced will contest serving Fort Lauderdale at the Law Offices of Stephen Bilkis & Associates to discuss your concerns. A potential consequence of a will contest is that the court will invalidate the will. We have years of experience representing personal representatives, beneficiaries, and heirs in disputes related to wills, trusts, powers of attorney, and other estate documents. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.

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