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Will Challenge

It is not uncommon for a relative, a friend, or someone else to not be dissatisfied with the terms of a will. There are occasions when a relative or a friend believed that he (or she) was going to receive money in the will but the deceased left him nothing. There are also cases where a relative or friend thought that she was going to receive a beautiful piece of artwork or real estate from the deceased but the deceased left the property to someone else. Learning that the terms of the will are not as expected sometimes leads to a will challenge. In Florida, a will challenge involves objecting to a will being admitted to probate. There are specific legal requirements for a will challenge. If you are concerned about the validity of a will, contact an experienced Fort Lauderdale will challenge lawyer who will work with you closely to help ensure that your interests are protected throughout the process.

Standing to Challenge a Will

In Florida in order to object to a will, you must have legal standing to do so. The law does not allow for just anyone to petition the court to object to a will being admitted to probate. Like any other issue related to the administration of an estate, only interested parties have standing to challenge a will. Interested parties include those who have a direct, immediate, financial interest in the outcome of the challenge. That would include beneficiaries, beneficiaries under a prior will, the next of kin, and the personal representative. A beneficiary is someone who is named in the will. Typically beneficiaries are close family members such as spouses, children, siblings, and parents. Beneficiaries also could be friends, employees, or even an organization such as a school, religious organization, or charitable organization.

Heirs are those who would by law receive a distribution from the estate of the decedent if there was no will. Florida has a set of rules called intestate succession rules. If a decedent passes away without making a will, certain specific relatives have the legal right to estate assets. This generally means that the spouse and children would receive the entire estate. In the absence of a spouse or children there are specific blood relatives who would receive the property.

Grounds for a Will Challenge

Courts do not take the idea of invalidating wills lightly. The courts do not want to disturb what appears to be the wishes of the testator unless there is a good reason to. Furthermore, will challenges can be lengthy and costly for the estate. The legal fees related to a will contest are typically chargeable to the estate. Thus, as an experienced Fort Lauderdale will challenge lawyer will explain, in order to petition the court objecting to the probate of a will you the objector must have standing and the objector must also have legal grounds. Legal grounds include:

  • Mental incapacity. Florida law requires that a testator must have testamentary capacity. This means that the testator must have the mental ability to understand that ramifications of making a will, who his next of kin is, and the extent of his the property he owns. If there is evidence that the testator did not have the requisite mental capacity at the time of executing the will, the court may have no choice but to invalidate the will. If you have doubts about the capacity of the testator of a will of a loved one, you should discuss your concerns with an experienced will challenge attorney in Fort Lauderdale.
  • Undue influence. Undue influence occurs when someone exerts pressure over a vulnerable testator in order to manipulate him or her to include terms in a will that the testator would not otherwise have included.
Affect of Successful Will Challenge

If a will challenge is successful, the circuit court will deny probate. If there is a prior will that is valid, the court will probate that will. If there is no prior valid well, then the court will treat the estate as if the testator never created a will. In other words the estate will be distributed to the testator‘s legal heirs under Florida’s intestate succession statute. That means that if the testator had a spouse and no children or grandchildren, the surviving spouse would get 100% of the estate. If the testator has children or grandchildren but no surviving spouse, the children or grandchildren will receive the entire estate in equal shares. Grandchildren will be entitled to an intestate share only if the child of the decedent (who is the grandchildren’s parent) predeceased the decedent. If there is a surviving spouse and children, the spouse will get 50% of the estate and the other 50% of the estate will be divided among the children. If there is no spouse and no children, the estate will go to other blood relatives based on priority as described in Florida Probate Code.

Contact the Law Offices of Stephen Bilkis & Associates

If you are a beneficiary, heir, or personal representative of a will that is the subject of a will challenge, it is important that you are represented by a will challenge attorney serving Fort Lauderdale who has experience. The skilled attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing personal representatives, beneficiaries, and heirs in disputes related to wills, trusts, and other estate documents. We are here to help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.