A will is an important legal document designating an individual’s final wishes. While most wills are upheld, there are some valid grounds when they can be challenged. You may wonder, “Can I prevent a contested will in Florida?” Our experienced attorneys in Florida can help you learn more about this concern.
Who Can Contest a Will?
Not just anybody can contest the legal validity of someone’s will. The only people who can challenge a will are known as “interested persons.” These may include beneficiaries, heirs, fiduciaries, or others who may lose the potential inheritance.
What Are Grounds for Contesting a Will?
When evaluating a contested will, the courts consider motive. Simple disappointment is not enough, there must be legal grounds. The following are several of the most common legal reasons for a contested will:
- Undue Influence. In this case, it is suggested that the deceased person has left a considerable amount of their assets to someone who inappropriately influenced them. A common example would be a caregiver who may have inappropriately influenced the decedent’s final wishes.
- Mental Capacity. In cases like this, the decedent lacked the capacity to make decisions. If the deceased drafted a will or made changes when he or she was not of sound mind, this may be a consideration.
- Contrary Evidence. In some cases, the decedent’s family has convincing evidence to show that the will does not match the decedent’s wishes. If this evidence is strong enough, it may lead to a contested will.
- Technicalities. If a will was made before the age of 18, it may be contested. Additionally, the will must state it belongs to the person in question, include provisions for assets, and have an executor named or appointed by the courts.
- Witnesses. Wills must be signed and dated by two adult witnesses who do not stand to benefit from its provisions. Handwritten and/or unsigned or undated wills (known as “holographic wills”) are far more likely to be contested.
How Can I Avoid a Contested Will?
It is important to recognize that Florida, unlike many other states, does not allow a “no-contest clause.” This means if an heir challenges a will and fails, they receive nothing. Because a no-contest clause is not allowed in Florida, here are some tips to ensure that your wishes are followed and not contested.
- Use a Trust. Revocable living trusts are more costly and challenging to contest. They also make it more difficult for a potential petitioner to know essential information within the trust.
- Execute Properly. Wills are less likely to be challenged when they follow the safest legal process: typed, signed, clearly assigned to you, and witnessed.
- Start Early. It may be uncomfortable to think about end-of-life scenarios, but it benefits you to start early to assure your family and any potential challengers that you were of sound mind when you made those decisions.
- Regularly Review Your Will. Wills and/or trusts should not be a “one and done” situation. Every three to five years, review your will and make sure everything is up to date and relevant to your current situation and desires.
- Talk with Family. Surprises in a will can lead to frustrated heirs. When you have made your decisions, let your family know, so they can understand and have time to adjust.
At the end of our lives, we want our wishes honored, not contested. To speak with an experienced elder care law attorney about wills, trusts, or estate planning, please contact us at The Law Office of Amy B. Van Fossen.