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Miami Probate Attorney: Contesting a Will

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Contesting the Validity of a Will in Florida

Will Contests

Under Florida law, there are a number of ways to contest the validity of a will.  Under Florida Probate Rule 5.275 “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.  Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.”

If you believe that a will is invalid, it is imperative that you act fast. You only have a limited amount of time to file a claim.   To successfully contest a will, a person must have extensive knowledge of Florida Statutes, specifically of the Probate Code.

An experienced probate attorney will have intricate knowledge of the Probate Code and will help you understand the requirements for contesting a will and how to overcome defenses.  Because probate involves the death of a loved one, it can be sensitive to all involved parties.  At Levin Law, we understand how difficult this may be to your family, and we are here to help.

If you believe that a will in which you are a beneficiary to is invalid, call our offices immediately for a free consultation.

Lack of Testamentary Capacity

Under Florida Statute 732.501: “any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.” One of the most common ways to contest a will is in proving that the testator was not of sound mind when the will was executed.  In legal terms, an attorney would argue that there was a lack of testamentary capacity.

The test for determining testamentary capacity was established in the case In Re Witt’s Estate, 139 So. 2d 904 (Fla. Dist. Ct. App. 1962). Relying on a number of prior cases, the court determined that ‘sound mind’ means the ability of the testator “to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.”

Improper Execution of a Will

A will may also be invalidated if it was improperly executed.  F.S. 732.502 lays out the requirements for a properly executed will.

  • All wills must be in writing and signed by the testator or by another person in their presence and at their direction.
  • All wills must be signed or acknowledged by two attesting witnesses.
  • The witnesses’ signatures must be affixed to the will in the “presence of the testator and in the presence of each other.”

Failure to properly execute a will under the Florida Statutes can render it invalid.  All codicils must be executed appropriately as well to be considered valid.

Proving Fraud, Duress, or Undue Influence

Finally, to be a properly executed will, the testator must be free from fraud, duress, and undue influence at the time of execution.  F.S. 732.5165 states:

“A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.”

Contesting a will can be difficult.  If you believe that a will was improperly executed, signed under duress, fraud or undue influence, or that the testator lacked a sound mind at the time of execution contact Levin Law today for a free case evaluation.

Contact a Miami probate attorney at (305) 402-9050 today.  We look forward to speaking with you to determine your options through a free case evaluation. Levin Law accepts many cases on a contingency-fee-basis.

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