Miami Probate Attorney FL

According to Miami probate attorney, the desire to contest a loved one's will is common, but there are only four basic legal reasons for challenging a will, and it's both costly and difficult to succeed. Individuals considering contesting a will in Florida should be aware of the following.

The four reasons a will may be legally challenged include: the will was not signed in accordance with Florida laws; the Testator lacked capacity to sign the will; the Testator was unduly influenced; or there is evidence of fraud.

In Florida, a will must be signed in the presence of two witnesses, and each must sign the will while the other two watch. Even wills that were executed in an estate attorney's office may not have been signed with the legal formalities, so this is the most common reason a will is ultimately found invalid.

Secondly, the Testator, or deceased, must understand the nature and value of the assets, who should logically inherit these assets and the legal effect of signing the will. In Florida, a person may show signs of dementia yet maintain the testamentary capacity to sign the will, in which case it cannot be contested on these grounds. To successfully challenge the will, witnesses to the signing will be important. Lack of capacity is notoriously difficult to prove without a doctor's visit or an adjudication of incapacity shortly before or after the signing.

Many people feel the need to contest a will if they believe the Testator was unduly influenced. As people age, it's only natural that they become weaker mentally and physically, and more susceptible to influence. The most important aspect of undue influence is the alleged influencer exerted extreme pressure and placed the deceased under duress, causing the Testator to lose free will. Nagging and verbal abuse are not enough under the law to prove undue influence, but consultations with the Testator's attorney on the details of the will, holding the original will, isolating the Testator from friends or family or paying for the will may be signs. This is still difficult to prove, however.

Finally, he explains that fraud is the final legal way in which a will may be contested in Florida. If the Testator was presented a document under the belief it was a power of attorney, for example, the will was procured by fraud. This is also very hard to prove, as the Testator cannot be questioned. In this case, witnesses must be questioned about what they believed the Testator was signing and why they were asked to be a witness to the signing.

Individuals who still want to contest a loved one's will should consult with an estate planning attorney to discuss the details of the case and remember that there is a deadline, as documents must be filed within 90 days after the Notice of Administration is Filed.