Ronald A. Jones, PA, Attorney at Law
Can I contest or challenge a will?
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My father died and cut me out of the will
Can I contest or challenge a will?

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Just because you don't like a will does not mean that it can be thrown out.

There are basically two lines of attack on a will in Florida.

First, "execution" of the will; whether the will complies with the formalities required under Florida law to be valid.

Florida requires a will to be in writing; signed at the end by the person making the will; and signed at the end by two witnesses; both of the witnesses must sign the will in the presence of the person making the will and in the presence of the other witness. In other words, both of the witnesses AND the person making the will have to be in the same room, at the same time, and more or less in the presence of each other.

Whether or not someone is considered "in the presence" of someone else can get complicated, but generally if they are all standing or sitting around a table or desk at the same time is going to be sufficient.

Most lawyers in Florida use what is called a 'self proving affidavit' on wills, where the testator (the person making the will) and the witnesses first sign the will, then swear, under oath, that they signed the will in the presence of each other; then they sign it again and the will is then notarized. The self proving affidavit does a couple of things; first, it is presumptive proof that the will was executed in accordance with law. Second, it prevents having to track down the witnesses after the person died.

The point is, from a perspective of someone seeking to set aside or challenge a will, a self proving affidavit is going to be strong evidence that it was properly executed. It is not conclusive, but it will be up to the person challenging the will to show that it was not properly executed.

Also, in Florida, the person making the will has to be of sound mind; they have to know, generally, what their property is, and who their natural objects of affection are. This does not mean that they have to be 'sharp as a tack' but they do have to know what they are doing. Specific facts will lead to specific results; and the standard can be a bit murky when applied to specific facts, but the testator has to have had what is called "testamentary capacity" at the time of making the will. If it can be shown that they were did not know what they were doing at the time, then the will can be set aside.

The other major line of attack on wills is what is called 'undue influence'. This is where someone who the testator would trust (what the law terms a "confidential relationship") has influenced the testator to make or change a will in such a way as to benefit that person in a way that normally they would not benefit. Once again, the law can be a bit murky on the details; whether someone has received a 'substantial benefit' can depend on the facts; whether they received something that normally they would not can be debatable, and proving this can be very difficult. But, generally, the courts will look at different factors, including whether the person would have taken the same thing under a prior will or if the person died without a will, whether they choose the lawyer or knew of the will being drafted, whether they were present at the time the will was discussed with the lawyer or at the time the will was executed, whether they kept control of the will and the length of time between the execution of the will and the persons death.

Wills can be challenged; however, most will contests take a considerable amount of time and can be quite expensive. If you have questions about whether or not a will should be challenged you should speak to a Florida attorney, preferably one who has experience in will contests.

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Ronald A. Jones, PA, 15600 A S US Hwy 441 Summerfield FL (352) 347-2288