While it’s hard to get a probate judge to overturn a will (or a portion of a will) in the state of Florida, it is possible. You have to provide enough evidence to prove your case, and you must launch a challenge before the probate proceeding is completed (in the first 3 months of being notified that they will have been filed; potentially longer if you were not legally notified).
Here are some reasons you and your lawyer might prevail:
- The will wasn’t executed properly. This includes things like having an improper signature or not being witnessed by the required two people.
- Lack of testamentary capacity. The court considers this to be different from general mental capacity. A person could be hallucinating for days but if they become lucid for an afternoon, as long as they understand what they are signing and to whom their possessions will be going, they can execute a will. This was reportedly the claim used years ago in the estate battle of the Doors’ Jim Morrison, when it was argued that the legendary singer was under the influence of narcotics when he wrote his will. (That will contest was ultimately settled out of court.)
- Undue influence. I’ve had several adult children try to come to meetings with their parents and me when their folks were deciding how to divide assets in their will. I always make the children leave. That way, there is no possible cause for a sibling who gets less or nothing to cry foul. To successfully mount a challenge this way, you have to prove that the influencer was involved in decisions regarding the will and that he or she benefits personally from the way it was drafted.
- Fraud. Was the decedent tricked into signing the will? Or perhaps he was lied to in a way that caused him to make a decision that would have been different absent the lie? Both are grounds for setting a will aside.
To prevent your own will from being successfully challenged, be sure it is drafted properly by a competent attorney. Although Florida law allows you to create a will on your own, I have seen too many cases of do-it-yourself wills thrown out by the court.
If you need your will drafted or have questions about current probate, contact the Law Office of Gary Landau by email, or call at 954-979-6566, for a FREE consultation. Attorney Gary Landau personally returns all calls to him.