Challenging a Will in Florida: Undue Influence and Incapacity

June 12, 2011 (Press-News.org) When a family member has been largely excluded from or completely left out of a will, he or she may feel a desire to mount a legal challenge. This is most often true when the intentions expressed in the document do not meet the expectations of a son, daughter, grandchild, sibling or other person who had a significant relationship with the deceased.

However, seeking to overturn a will that has been properly executed according to Florida law can be extremely difficult. In general, proper execution means that the testator signed the will in the presence of two witnesses, and the same standard applies to any amendments to the will, known as codicils.

But if certain circumstances can be proved, a Florida probate court can void a will in its entirety or at least eliminate certain provisions. Florida law requires that the person who makes the will must be 18 years of age or older and of sound mind, and that the will cannot have been procured due to undue influence.

Undue Influence: Did the Testator Lack Free Will?

Everyone may have some notion of what undue influence means within a certain context. With respect to wills, Florida's courts have defined it as "overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency of will power of the one making the will." One obvious example of undue influence would be withholding medication from an elderly relative until he or she agreed to change part of a will.

Incapacity: Were Decisions Made by a Sound Mind?

Another common basis for challenging a will in Florida is to argue that the person who made the will lacked testamentary capacity. This means that the decedent did not understand the nature and extent of all included assets and property, his or her relationships to all natural beneficiaries, and the practical effects of the will as executed. A successful challenge of the "sound mind" provision could be based on proof that the testator was suffering from mental illness, senility or an addiction that interfered with his or her ability to reason.

A Florida Estate Planning Attorney Can Explain Your Legal Options

There are other reasons why a will may be voidable, including fraud, a mistake by the testator, or discovery of a subsequent valid will that trumps earlier intent. The burden of proof is on the person who alleges that the will is not valid.

In addition, not just anyone has standing to challenge a will in court, and statutory limits dictate the amount of time available to challenge a will. A Florida probate lawyer who has experience helping clients defend and contest wills can assess all aspects of a potential client's case and provide targeted advice.

Article provided by Bryant Law Firm
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