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Contesting a Will: Why Does This Happen and How Can You Avoid This?

ESTATE PLANNING Attorney, NONPROFIT, BROWARD, MIAMI Corporate, Business ATTORNEY, > Estate Planning  > Contesting a Will: Why Does This Happen and How Can You Avoid This?

Contesting a Will: Why Does This Happen and How Can You Avoid This?

When a will is created, the person writing it has the opportunity to designate who will inherit their property after they die. This can be a relatively straightforward process, but it is not unheard of for family members to challenge a will if they feel that they have been unfairly left out.

The will creator often must have assumed that the document will be followed to the letter after their death. Maybe they indeed left some people out of their will. However, as we just mentioned, in some cases, these family members may challenge the will, claiming that it is invalid for one reason or another. 

How can you avoid this from happening? How can you ensure that your last wishes are upheld to the letter? We will touch on that in this brief.

Legal Grounds for Challenging a Will in Florida

The legal grounds for challenging a will in Florida include the following:

  • The will was not executed properly: This means that the will did not meet all of the legal requirements in order to be valid. This could potentially allow someone who was not intended to receive anything under the will to challenge it and potentially receive a portion of the estate.
  • The will was not signed by the testator: A will that is not signed by the testator is not valid in Florida. This is because Florida law requires that a will be signed by the testator in order for it to be valid. If someone challenges the will on this grounds, they would argue that the will should not be upheld because it was not signed.
  • The will was not witnessed by two people: In Florida, a will must be witnessed by two people in order to be considered valid. If the will is not witnessed and signed by two people, it can be challenged in court on the grounds that it is invalid.
  • The testator was coerced or tricked into making the will: A family member may argue that the testator was coerced or tricked into signing the will, and thus the will should not be upheld. This can be grounds for challenging a will in Florida. The coercion or trickery must be proven to have been significant enough that the testator did not have a free and voluntary will to sign the will.
  • The testator was subject to undue influence when making the will: The presence of undue influence can make a Florida will invalid. To challenge a will on the grounds of undue influence, there must be evidence that the person who exerted the influence had control over the testator and that the testator’s free will was overborne. There must also be evidence that the influencer benefited from the will.
  • The will was made while the testator was mentally incompetent: Under Florida law, a will can be challenged on the grounds that the testator was mentally incompetent at the time it was executed. To prevail on these grounds, the challenger must show that the testator lacked the capacity to understand the nature and consequences of his or her actions when signing the will. This can be difficult to do, particularly if the testator had no previous history of mental illness.
  • The will was made to defraud creditors: If a person makes a will in fraud of creditors, that will can be challenged in Florida. This legal ground for challenging a will exists when a testator (the person making the will) tries to improperly transfer their assets to someone else in order to avoid paying their debts. In order to successfully challenge a will on this basis, the creditor must show that the testator had the intent to defraud them and that the transfer of assets actually harmed the creditor’s interests.

Need to Create a Will That is Harder to Contest?

If you want to make it more difficult for your will to be contested, you will need to take some extra steps to make sure it is legally binding. One way to do this is to have the will “self-proved.” This means that it is notarized and signed by witnesses who also swear that you were of sound mind and body when you created the will.

Contact the SG Law Firm for a free consultation at (888) 567-5745 if need to create such a will or if you have any questions about contesting a will or any other aspect of estate preparation.

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