How to Contest a Will: Contesting a Will in Florida and Winning

How to Contest a Will in Florida: Contesting a Will With the Help of a Lawyer

If you are looking into contesting a will in Florida, then you will need to prove at least one of the following will contest grounds:

lack of mental capacity
undue influence
fraud
duress
forgery
the will was not made correctly

1. Lack of Mental Capacity

Another reason to contest a Florida will is lack of mental capacity. Many people make wills at a stage in their lives when they are old, frail, sick, and have failing memory and swaying judgment. When people get older, some become more eccentric – hence some of the stranger wills I’ve seen through the years. People also tend to become more trusting with age. But one has to be careful when bringing this kind of will contest – just because a person was old does not mean that they could not make decisions about what happens to their estate. As long as the will maker knew what was going on with their estate, what they were doing and who their heirs are, their will usually stands. To prove lack of mental capacity, a will contestant needs to show severe incapacity.

To show mental incapacity, we need to prove that the testator did not understand one or more of the following:

what they own
who their relatives and friends are
what is in their will.

Dementia Disorders

A will contest based on a lack of mental capacity has a higher chance of success when the testator suffered from a dementia disorder.

Alzheimer’s – this is the biggest cause of dementia. Early-onset can start as early as the age of 40 or 50, and progresses with age. It destroys cognitive functioning and may cause them to lose the capacity to make a will.
Vascular Dementia – often caused by a stroke, results from obstruction of blood flow to the brain
Parkinson’s Decease – degeneration of nerves in the brain.
Frontotemporal Dementia – deterioration and shrinkage in front and side areas of the brain
Dementia due to head injuries
Dementia due to HIV or medications

Changes in memory and behavior in older adults usually point to dementia. The gradual cognitive decline caused by a degenerative condition eventually results in the loss of mental capacity required to make a will. The more dementia progresses, the harder it becomes to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.

Mental Illness

Mental illness in and of itself does not mean that the decedent lacks capacity. For a will contest to work, you will need to prove that mental illness played a role in the making of the will. Some examples of mental illness that can impact the capacity to make a will are:

Depression – The will-maker feels hopeless and passive and does not care what happens to their estate. The elderly often suffer from depression towards the ends of their lives. Family conflicts relating to inheritance only exacerbate their depression.
Paranoia – The pervasive distrust of paranoia patients can make it easier to manipulate and “triangulate” them into excluding some people from their will.
Bipolar – Bipolar patients experience mood swings. Caretakers and relatives can exploit those mood swings to get the patient to change their Will.
Schizophrenia – Schizophrenia patients experience delusions and distorted reality. Caretakers and relatives can take advantage of those mental deficiencies in order to manipulate the patient into making a will bequest.

Personality Disorders

Personality disorders are not indicative of a lack of capacity. But they can still make some difference in a Florida will contest. For example, if the testator had a “Cluster C” Dependent Personality Disorder, then they can be vulnerable to undue influence. We look to symptoms such as

excessive dependence on others
submissive behavior
fear to have to provide self-care
difficulty disagreeing with others and
tolerance of poor or abusive treatment

Physical Factors

Weak Physical State – We challenge wills of decedents whose weak physical state adversely influenced their mental capacity.

Mind-Altering Pharmaceuticals – If the testator was taking mind-altering pharmaceuticals during the will execution, then his capacity to execute a will could be diminished. Sedatives, antipsychotics, and pain medications can push a mental state over the edge of capacity.

Drifting in and Out and Lucid Moments – Older people may drift in and out, sometimes lucid and sometimes not. If you are contesting the will, you will need to show that the decedent was not having any lucid moment. An attorney who made the will may testify that the testator had a lucid moment when he executed the will.

Some will contest lawyers and medical professionals hold the view that the lucid moment concept is out of date with the modern understanding of mental capacity. Their view is once the testator lost mental capacity, he does not get it back. However, at this time, our courts still consider lucid moments, so this is an important factor to consider in Florida will challenges.

Pro tip: Circumstantial Evidence – In contesting a will in Florida, we don’t have to prove that the decedent lacked capacity on the exact day of the will signing. Instead, we can use circumstantial evidence to show that the decedent lacked capacity during at that time.

Pro tip 2: Obtain Medical Records – When figuring out how to contest a will in Florida, the most effective strategy for challenging the decedent’s mental capacity is to obtain medical records from the medical providers. You can then go through those medical records and see if any notes point to incapacity. It’s good to check for a list of Alzheimer’s or dementia medications, sedatives and antipsychotics. You can find a list online.

Different forensic and analytical tests will be used to asses the mental capacity of the testator. The decedent might have been administered a Mini-Mental Exam or the Clock Test while they were still alive. After their death, we can no longer give them a test. But we can still use models of mental capacity such as PARADISE – 2 to argue that the decedent had impaired brain function at the time of the events in question.

2. Undue Influence and Duress

A common reason for a Florida will contest is a claim that the will maker was pressured to make the will. Such contests are subtle, as proving mere pressure is not enough to win – the pressure has to be so strong as to overpower the mind and will. The following factors can make a Florida will contest stronger: the disposition was unnatural; one child got more then another or was left out; the circumstances were suspicious; a lawyer was not involved; the will maker was susceptible to influence.

The mere fact that a person had a chance to influence the will maker does not mean that they did influence the will maker. However, the opportunity to influence a will maker does count in a Florida will contest – once it is proven that the person who benefited from the will was in a confidential relationship with the will maker and also made the arrangements for the will execution, Florida law presumes that the will maker was pressured and there was undue influence.

In will contest parlance, pressure to make a will is called duress and manipulation of the testator is called undue influence.

Undue Influence – To prove undue influence, you would have to show that a trusted person took advantage of the testator and manipulated him into making the will.

While undue influence most often is not the subject of direct proof, it may be proved by circumstantial evidence. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.

Duress – To prove duress, you would have to show force and coercion. Duress is the use of force, false imprisonment, or threats to compel the testator to make the will a certain way. Duress usually comes hand in hand with other elder abuse. The abuser uses violence or the threat of violence to get a testator to change his or her will in the abuser’s favor.

Pro tip: Prove a Confidential Relationship – A common undue influence strategy is to prove a confidential relationship with the decedent, showing a position of influence and opportunity to pressure the testator.

This confidential relationship power-up does not work well when the beneficiary of the will is a relative. It only works well when the person benefitting from the will is a caretaker or a different professional helping the testator.

3. Forgery

A forgery contest to a will is also possible. Although I have seen wills that were obvious fakes, most of the allegedly forged wills at least appear genuine. If a will was prepared with the supervision of an attorney and that attorney is still around to testify, chances of winning a forgery claim are pretty slim. The chances get even less if the will looks professionally put together and the signature matches the will maker’s other signatures on file. But if the signature looks very different from the will maker’s pervious signatures and there is no reasonable explanation for that, and especially if a will also looks sloppy and suspicious, a forgery claim may succeed.

If somebody forged a part of the will and we can prove the forgery, then we can have the Surrogate’s Court declare the will to be invalid. When figuring out how to contest a will in Florida, you will likely need to hire an expert familiar with the different forgery methods. The expert will examine the suspect will, prepare a report and testify in court.

How People Forge Wills – A forgery can either be of the signature or the document. Signature forgery is copying the signature, tracing it, or pasting it from a different document. Forgery of the document is replacing the pages or changing the text.

Handwriting Expert – We win forgery will contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert compares the handwriting on the will and testifies that it’s not a close enough match. The handwriting expert would also determine if the handwriting on the will belongs to someone else, such as the person benefiting from the will.

Pro tip: – A forgery trial can easily become a battle of the experts. Getting the most presentable and authoritative expert can make all the difference.

4. Fraud

In figuring out how to contest a will in Florida based on fraud, we will need to show that the beneficiaries knowingly misled the decedent to make him sign the will. We do that, and the will can be overturned and declared invalid.

Fraud in Factum – One type of fraud is misleading the decedent about the will itself. Beneficiaries slip a will under a guise of a different document or mischaracterize what is in the will and have the testator unknowingly sign it.

Fraud in the Inducement – Another type of fraud is misleading the testator about circumstances outside of the will. They can be fed misinformation about friends and relatives or other things in their lives.

Psychopaths with narcissistic personalities are good at using manipulative tactics. Their favored ways of manipulating vulnerable seniors are

triangulating – encouraging the victim’s negative thoughts about a close person and
gaslighting – providing a false view of reality to the victim

Opportunistic charlatans use those techniques to manipulate trusting older adults into leaving them an unfair share of the inheritance at the expense of the vulnerable person’s family and true wishes.

5. Lack of Due Execution

Another way to contest a Florida will is to say that it was not properly executed – witnesses weren’t present, the will maker did not declare it to be their will, etc. If an attorney supervised the will execution, then there is little point of alleging that execution was not done correctly. However, may times a will is made without an attorney, especially here in Florida, where many people would fill out a form they bought in a stationary store or downloaded from the internet and think that they’ve made a valid Florida will. If that was the case, a lack of execution claim can be a successful way to win a Florida will contest.

For a will to be valid, the people involved in the will execution need to follow Florida’s formal requirements. If they did not correctly execute the will, we could successfully contest that will, leading to the will being overturned and invalidated by the Surrogate’s Court. In figuring out how to contest a will in Florida, you will need to be familiar with the formal requirements of will execution.

The will need to meet the formal requirements, which are as follows:

The person making the will has to sign the will (or direct someone else to sign their will in their presence)
The person making the will has to sign at the end of the will, not in the middle of it.
There need to be two witnesses to the will
The person making the will has to sign the will in the presence of each witness
The person making the will must communicate to the witnesses that they are witnessing a will
everyone has to complete the entire ceremony within 30 days of the testator’s signature

The people involved have to follow Florida execution formalities. Problems can creep up, such as when the testator did not declare the document to be their will, or the witnesses are not there or not fully there. We can use those “hiccups” to litigate a successful will challenge in Florida.

There is little place left for ceremony in the modern world. A will execution is one of the few exceptions, and it needs to be followed precisely in order for a will to be valid.

Pro tip: Will Printed from the Internet vs. Attorney-Drafted Will – When a person prints out a will from the internet or fills out a store-bought form, they are playing Russian Roulette with the validity of their will. It is easy to figure out how to challenge a DIY will. No estate attorney would possibly testify to support such a will, because no attorney was involved in making it.

6. Revocation

A testator can revoke a will by destroying it or crossing out the signature.

If no one can find the will, we presume that the testator revoked it, unless someone proves otherwise.

A testator can revoke a will by making a new one. The latest will always controls, unless overturned, in which case we revert to the will before that.

When It Rains, it Pours – When figuring out how to contest a will in Florida, we often plead every possible ground for a Florida will challenge, hoping that we find one that sticks. If the decedent was not well enough to make a will, then he was probably vulnerable to being misinformed or pressured to make a Will.

A claimant is not limited to just one ground for challenging a will. Once a will is problematic, it is likely to have more then one problem. Will contests based on multiple grounds are proper, as long as it is not obvious that the contestant is just trying to throw whatever sticks. Most commonly, such will contests involve an elderly person who because of a health condition, not only lacked the mental capacity to make a will, but was also more prone to manipulation and pressure.

It is true that in some will contest situations, an opportunity for a win can be spotted early on in the case. We can then proceed with a laser-sharp focus on a single issue. However, the most common strategy is still to plead every possible Will contest ground and see which one of them turns out to be more successful.

If you are involved in contesting a will in Florida, contact an estate attorney. You will describe the circumstances of the making of the will and air out the case. An estate attorney can determine whether the proposed objections have merit. Estate attorneys usually request court-supervised depositions of the people involved before deciding whether it is worth your while to invest in a full-blown will contest.

We try to settle will contests before trial. If a settlement is not possible, then the sides will proceed to exchange more documents and information, and ultimately progress to trial. The judge or the will jury decide whether the will is valid.

Remedies for a Defective Will

When your lawyer is contesting a will in Florida, the court will decide at a trial whether the will is valid. The executor is not permitted to distribute the estate until after the trial. If the court finds the will to be invalid, the court will do one or more of the following:

Not admit the will
Admit only a portion of the will
Admit an earlier will in its place
Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.

Deadline Alert:	Once the will is admitted to probate, it will be too late to challenge it. Act before the first hearing in the case.

When it comes to making wills, unscrupulous people can take advantage of vulnerable individuals. Unscrupulous relatives, caretakers and so-called “friends” with ulterior motives prey on people who are physically disabled, cognitively impaired, isolated, confused and depressed. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that someone took advantage of your loved one, you may be able to overturn their so-called “will.” This is done with the help of a lawyer through a will contest in Florida Surrogate’s Court.

A will is presumed to be valid unless proven otherwise. If a testator wants to set up their will a certain way, it’s their business. In Florida, you can disinherit your relatives if you wish to do so.

Some relatives are entitled to a part of the decedent’s estate without having to go through a will contest. A spouse gets strong protection under Florida estate law. If the will was made before the marriage, the spouse still gets a large share of the estate even if she was not in the will. If a will was made after the marriage and the spouse was left out of it, the spouse would still be entitled to the Florida elective share in the amount of more then 30% of the estate. A Florida spouse also has substantial homestead rights, which include the right to stay in the home. Florida estate law affords some protection to a child as well. If a will was made before a child was born, the child is entitled to share in the estate.
One technical point – the State of Florida does not have the so-called dead man’s statute. Consequently, conversations with the deceased during their lifetime are allowed into evidence. Nevertheless, even with that evidentiary benefit, will contests still remain the most difficult type of Florida, Florida estate litigation.

You should never go into a will contest without trial counsel. Even though you now have all this information, you will still be at a great disadvantage because you don’t have the experience in contesting a will.

Attorney Albert Goodwin has been litigating Florida will contests for over a decade. You can call us at 786-522-1411, 954-299-0053 or [email protected].