Sometimes people talk to an estate planning lawyer in Florida not because they want to create a plan of their own, but because they are thinking about challenging a piece of someone else’s plan. This often happens, for example, when people are considering challenging the will left behind by a parent or other deceased family member. Let’s take a closer look at will challenges in Florida.
Challenging a Will Now, or Later?
Some people who want to challenge a will think that the terms the testator (the person who made the will) included in the will are unfair. For example, you might learn that your grandfather has decided to leave a significant inheritance to your siblings, but nothing to you.
While this may be an unfair choice, that doesn’t mean you can challenge it. In fact, you cannot challenge any will until after it has been filed with a Florida probate court. A testator retains the ability to change the terms of the will at any time as long as he or she remains mentally capable. Wills are not contracts, and just because you don’t like what may be within them, doesn’t mean you can go to court over them.
Challenging the Validity of the Will
When you file a will challenge, you have to state a reason why you believe the probate court should determine that the will is invalid. As mentioned in the previous section, you cannot simply challenge a will because you don’t like the terms. You can, however, challenge a will if you believe it doesn’t meet the legal requirements imposed by Florida law.
For example, a person making a will in Florida must make it in writing. The testator must also sign the document and do so in the presence of two witnesses that also sign. If you believe the testator failed to sign the document, didn’t do so in the presences of witnesses, or that the witnesses also didn’t sign, you can challenge the will on this basis.
Testators in Florida must also be of sound mind at the time they create the document. If you believe, for example, that the testator was suffering from a mental illness that made him or her unable to understand what was going on during the will creation process, you can also challenge the document for this reason.
Of course, there are many other issues involved in cases where someone is challenging a will. For example, were the witnesses competent at the time they signed? Can you fight a will even if it contains a clause that says anyone who filed the challenge will be disinherited? Your estate planning attorney can give you more detailed advice about challenging wills.