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Florida Probate Statute 733.107: Burden of Proof in Contests; Presumption of Undue Influence

Because a decedent’s last will and testament is supposed to represent the true wishes of the testator with respect to how he (or she) would like his estate to be distributed, where there are questions about the validity of a will Florida law allows interested parties to contest a will by objecting to it being admitted to probate. In order for a will to be declared invalid, the person objecting to the will must have evidence that the will is not in fact a statement of the testator’s wishes. If the circuit court finds that the will is not valid, it will not admit it to probate. To learn more about the process of challenging the validity of a will, including the requirements of Florida Statutes, section 733.107- Burden of proof in contests; presumption of undue influence, contact an experienced Fort Lauderdale will contest lawyer at the Law Offices of Stephen Bilkis & Associates to discuss your concerns. We are here to help.

Who Can Contest a Will

In Florida only interested parties have standing to contest the validity of a will. Under section 731.201(23) of the Florida Probate Code, interested parties include anyone who can reasonably be expected to be impacted by the outcome of the proceeding. This would include the personal representative. It would also include beneficiaries and heirs as the outcome of a will contest could mean that beneficiaries mentioned in the will would not receive anything should the will be declared invalid. Likewise, heirs who would not receive anything from the estate based on the terms of the will might indeed receive a distribution if the will is declared invalid and the estate is distributed according to the rules of intestate succession.

Reasons for Contesting a Will

As an experienced Fort Lauderdale will contest lawyer will explain, common reasons for contesting a will include:

  • Fraud. Examples of fraud include the testator’s signature being forged, a witness’s signature being forged, or the entire will being fraudulent.
  • Duress. The duress can be physical or emotional. For example, someone threatens to withhold medical care or threatens to injure a relative of the testator if he or she does not execute a will favorable to the person making the threats.
  • Mistake. The testator was under a mistaken belief of a critical fact. For example, a testator was under the mistaken belief that her favorite niece had died. As a result, the testator executed a new will that left out the niece.
  • Undue influence. A will would have been executed based on undue influence if someone wishing to benefit from the will used his or her position of power over the testator to manipulate the testator into including terms in the will favorable to him or her. For example, a home health care worker over time convinces a vulnerable testator to cut her children out of the will and instead leave her estate to the home health care worker.
Burden of Proof in Contests; Presumption of Undue Influence

A will contest involves a contestant filing a petition with the circuit court having jurisdiction over the probate proceeding objecting to the will being admitted to probate. The proponent of the will, typically the personal representative, has the burden of establishing that the will was properly executed and attested. If the will includes a properly executed self-proving affidavit or an oath of an attesting witness executed, then there would be prima facie evidence of the formal execution and attestation of the will. In such a case the contestant would then have the burden of establishing the grounds for contesting the will. For more information about the burden of proof in will contests, contact an experienced will contest attorney in Fort Lauderdale.

Consequence of Successful Will Contest

If a will is found to be invalid, the court will not allow it to be admitted to probate. The estate will not be administered and distributed based on the terms of an invalid will. Instead, the court will direct the personal representative to distribute the assets of the estate based on the rules of intestate succession. In some cases where it is determined that only a small part of the will is invalid, the court my void only that part and allow the rest of the will to be probated.

Related Statutory Provisions
  1. General definitions: § 731.201, Fla. Stat.
  2. Self-proof of will: § 732.503, Fla. Stat.
  3. Penalty clause for contest: § 732.517, Fla. Stat.
  4. Will contests: § 732.518, Fla. Stat.
  5. Proof of wills: § 733.201, Fla. Stat.
FL. Stat, Section 733.107- Burden of Proof in Contests; Presumption of Undue Influence
  1. In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
  2. In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.
Contact the Law Offices of Stephen Bilkis & Associates

If you are concerned about the validity of the will of a loved one, it is important that you immediately contact an experienced will contest lawyer serving Fort Lauderdale. Challenging the validity of a will is complicated, and is something that you should not attempt alone. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters related to estate administration, estate litigation, and other estate matters, and are familiar with requirements of the Florida Probate Code, including the requirements of Florida Statutes, section 733.107- Burden of proof in contests; presumption of undue influence.

Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case

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