On Behalf of | Dec 3, 2014 | Uncategorized

Having a solid estate plan is essential if you wish to have some control over how your assets are distributed after you die. We have discussed some ways of avoiding probate in Florida and the delays and costs associated with it. But for various reasons, probate is sometimes necessary, so it might be a good idea to take a look at the more likely legal justifications someone might have for challenging all or part of a will.

Florida statutes provide that wills cannot be challenged before the testator’s death, nor will the law give effect to any provision in the document that seeks to explicitly prevent someone from challenging the will postmortem. So once a will has entered probate, what are the most likely reasons it will be challenged? In Florida, there are two basic challenges to a will; lack of mental capacity and undue influence.

Lack of mental, or testamentary, capacity is typically invoked when the testator was very old or sick when the will was drawn up. It is a challenge that contends the testator did not fully understand either the extent or types of his or her assets, who his or her “natural” heirs should be, or what the practical effect of the will was likely to be. The wills of persons who had dementia or a similar impairment are often the subject of such challenges. It is important to note that it is the person’s capacity at the moment the will is created, rather than his or her general condition, that will control.

Undue influence, on the other hand, has to do with the effect a third party had on the content of the will. This challenge is typically an allegation that a person who was a substantial beneficiary under the will and a confidante of the testator took an active part in procurement of the will. The idea here is that this person had so much influence on the testator that his or her desires were substituted for the testator’s.

Challenging a will can be a difficult and time-consuming process. If you think you may have grounds to go to probate court and challenge the distribution of probate assets, you may wish to contact an experienced estate planning attorney.

Source: Fla. Stat. ch. 732, accessed Dec. 2, 2014