VanNess & VanNess, P.A.

Challenging a will

It is very difficult to challenge a Florida testator's will, and the vast majority of wills go through probate court without being contested. Courts will try to stick to the terms of a will exactly unless there is proof that the will is invalid. If a will is invalidated, the court may use a previous will or intestacy laws to decide how property should be distributed.

A will can be challenged by any person who has an interest to gain from the will contest. The most successful will challengers are usually spouses who argue that testators were unduly influenced by another person or lacking testamentary capacity when they wrote their will. To challenge testamentary capacity, the challenger must be able to prove that testators lacked the mental capacity to understand the consequences of what they wrote in their will.

Another reason to challenge a will is by arguing that the executor is using an outdated will to make distributions. If the court determines that there is in fact a newer will that is valid, the court will likely throw out the old will and follow the instructions of the new will. A will could also be invalidated if it was not signed in the presence of witnesses.

Spouses or family members of a testator may want to have representation from an attorney who has experience with this type of probate litigation if they want to challenge the deceased person's will. Because courts assume that a will is valid, the challenger will bear the burden of proof.

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