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Home >> Contesting a Will – Is It the Right Choice?

Contesting a Will – Is It the Right Choice?

December 5, 2019 by Andreas Kulas

Vero Beach probate attorneyDealing with the emotional impact of a loved one’s death is never easy. Sometimes, however, dealing with the practical and legal ramifications of a death can be just as difficult. For example, making the decision to contest the Will of a recently deceased loved one is not an easy one to make for most people. To help you make the right choice, a Vero Beach probate attorney at Kulas Law Group discusses factors to consider before deciding to contest a Will.

Probate Basics

When an individual passes away, the law requires the assets that make up the decedent’s estate to be accounted for and ultimately passed down to the intended beneficiaries or heirs of the estate.  Before assets are transferred out of the estate, however, debts of the estate – including gift and estate taxes — must be paid. All of this occurs during the probate process. One of the first steps in the probate process, however, is the authentication of the decedent’s Will, if one is submitted to the court. It is at this point that you should contest the Will if you decide to do so.

What Is Involved in a Will Contest – and Is It Worth the Cost?

Because every estate is unique, it is imperative that you discuss your legal options with an experienced probate attorney before making a decision regarding the wisdom of contesting a Will that has been submitted for probate. It may, however, be helpful to get an idea of the factors worth considering when making the decision.

Among the most important factors is whether or not you have legal grounds on which to base a Will contest. You cannot challenge a Will simply because you are unhappy with the terms of that Will. Instead, you must ultimately prove an acceptable legal ground on which the Will can be declared invalid. In Florida, the grounds available to contest a Will are:

  • Lack of proper formalities – this refers to an improperly executed Will. For example, if there were no witnesses to the signing of the Will.
  • Lack of testamentary capacity – this refers to a claim that the Testator lacked the necessary mental competency to make a will, meaning that he/she did not understand the nature of his or her assets and the people to whom the assets were going to be distributed.
  • Undue influence – refers to a situation where a Testator is compelled or coerced to execute a Will by applying improper pressure or persuasion. Usually, this is done by someone in a position of trust close to the Testator, such as a family member, caregiver, or even healthcare worker.
  • Insane delusion – refers to a situation when a Testator, against all evidence to the contrary, believes something that is not true, and creates or changes an estate planning document, in this case a Will, based on the insane delusion.
  • Fraud – refers to a situation wherein someone causes the Testator to make or change a Will based on misrepresentations.

Given the financial and emotional cost involved in contesting a Will, you should consult with an attorney and be reasonably certain that you have a good chance of being able to prove one of these grounds before deciding to move forward.

Another important consideration is the existence or absence of a “no contest clause” which is formally referred to as an “in terrorem clause.” A no contest cause works by forfeiting the inheritance of a beneficiary if that beneficiary contests a Will. States differ as to the enforceability of no contest clauses. Section 732.517 of the Florida Statutes is very clear about how a no contest clause is to be treated, stating “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Therefore, if the Will is being probated in the State of Florida, you do not need to worry about the existence of a no contest clause; however, most other states will enforce a no contest clause under certain conditions.

Contact a Vero Beach Probate Attorney

To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about contesting a Will, please contact an experienced Vero Beach probate attorney at Kulas Law Group by calling (772) 398-0720 to schedule a consultation.

Filed Under: Probate

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I have known Robert Kulas for 20 years since I was co-executor for friends who had Mr. Kulas prepare a Trust for them. When I felt I needed a trust also, I came to him. I have always been completed satisfied with his work and that of his charming, competent staff.

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Mr. Kulas and his staff have been extremely helpful & knowledgeable for the over 3 years we have been associated. They are easy to talk to and explain everything without feeling rushed. Very competent and professional.

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Everyone treated us extremely well.  Robert explained how a trust works and the benefits of having one.  We decided to move forward and complete the process.  He was very kind and knowledgeable.  Julie was also very helpful and very patient with our questions.  We felt very comfortable with this firm handling our affairs.  We would highly recommend this firm to our friends and family.

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Janice M
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"Everyone treated us extremely well.  Robert explained how a trust works and the benefits of having one.  We decided to move forward and complete the process.  He was very kind and knowledgeable.  Julie was also very helpful and very patient with our questions.  We felt very comfortable with this firm handling our affairs.  We would highly recommend this firm to our friends and family."

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Janice M
Krissy L.
Client Review
August 25, 2020
    

Robert Kulas and staff made making a will an easy to understand process. They were very knowledgeable and attentive to my wishes. All my documents were provided in an organized binder which will be a great asset to my family. I would definitely recommend them.

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Krissy L.
Leo C.
Client Review
August 25, 2020
    

I have worked with Mr. Kulas & staff before. And they are very professional. I am very satisfied with Mr. Kulas and his staff and give them the highest satisfaction and 5 star rating.

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Leo C.
Mildred W.
Client Review
August 25, 2020
    

Mr. Kulas and his staff have been extremely helpful & knowledgeable for the over 3 years we have been associated. They are easy to talk to and explain everything without feeling rushed. Very competent and professional.

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Mildred W.
Joan C.
Client Review
August 25, 2020
    

I have known Robert Kulas for 20 years since I was co-executor for friends who had Mr. Kulas prepare a Trust for them. When I felt I needed a trust also, I came to him. I have always been completed satisfied with his work and that of his charming, competent staff.

default image
Joan C.
L.G.K.
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August 25, 2020
    

We began our estate plan process in 2004 (12 years ago) and have been pleased with the periodic reviews we have gone through and when changes have been needed the firm has been thorough and professional in making those changes.

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