In Florida, an interested party may challenge the validity of an existing will, in whole or in part, based on a limited number of grounds, such as when the maker of the will (i.e., the testator) lacked capacity to execute the will, or when the required legal formalities for the execution of a will were not properly followed, or even when there is proof that the will does not accurately reflect the testator’s wishes due to an outside interference, among other reasons. This article will provide a walk-through the most common grounds in which a will can legitimately be contested.
Lack of Mental Capacity
Under Florida law, only testators that are at least 18 years of age (or emancipated minors), and of “sound mind” may execute wills. Being of sound mind simply means that the testator generally understands the nature and extent of the property they own, the people who will benefit from their assets, and the practical effects of the will.
Factors such as the addiction to intoxicants, old age, sickness, and memory failings do not, by themselves, mean that the testator lacks a sound mind. Florida courts have recognized that even a person who uses intoxicants, has an insane delusion, is very old or sick, or is even diagnosed with dementia may make a will in a lucid interval if they understand the nature and extent of their act at the time that the will is being executed, especially where the will appears to have been fairly made and consistent with the inference that it emanated from a free mind.
Failure to Comply with Legal Formalities
In addition to being at least 18 years of age and of sound mind, the will must be in a writing signed by the testator (or by another at the testator’s direction and presence), and attested by two witnesses, who must also sign the will in the presence of each other and of the testator. If these formalities are not observed, an interested party may challenge the will as invalid.
Undue Influence and Coercion
Undue influence occurs when an outsider exercises a strong and improper persuasion upon the testator’s mind in a manner such that the testator’s choices under the will do not correspond to his true wishes. An undue influence is usually seen whenever the person exercising the influence (a) has some sort of confidential relationship with the testator, such as a relative, friend, or any other relationship based on trust; (b) was active in securing the execution of the will, or (c) is a substantial beneficiary under the will.
An example of this is an elderly mother who has two sons. Suppose that son B begins lying to his mother about his brother, son A, aiming to influence his mother to think badly of son A, and ultimately getting her to change her will and leave all of her assets to him (son B). This is a typical example of undue influence, where son B had a confidential relationship with his mother, was active in securing the change of the will, and was also a substantial beneficiary under the will.
Coercion or duress can also be seen alongside undue influence, and it occurs when a third-party compels, forces, and even physically threatens the testator to create or change a will according to that party’s directions when the testator would not have voluntarily done so.
Fraud
Fraud occurs when a third-party deceives someone in order to profit. A will that is procured by fraud is void and can be seen whenever a third-party makes false statements to the testator, which leads the testator to make or change a will based on those false statements.
There are two types of fraud. On one hand, we have the “fraud in the execution”, where a third-party falsely represents to the testator that the will being executed is something other than a will, such as when an elderly is told that they are signing a letter when they are really signing a document to change their will and the recipient of their assets.
There is also the so-called “fraud in the inducement”, which occurs when a third party intentionally scams and misrepresents a significant fact to the testator to get him to change his will. Fraud in the inducement can be seen whenever a third-party falsely states that they are a caretaker that will care for a sick testator if he names her as beneficiary under his will. Turns out that the third-party is not actually a caretaker, and the testator was deceived.
Forgery
Forgery, on the other hand, occurs when a will is made without the testator’s knowledge and bears a forged signature. Contesting a will that is a product of forgery is much more straight-forward than contesting a will based on undue influence and fraud, mostly because forgery can be proved by objective facts, such as a handwriting expert who will be able to establish whether the signature on the will is, in fact, the signature of the testator. It is important to highlight that, as mentioned above, a will can still be signed by a person other than the testator so long as it was done in the testator’s presence and at the testator’s direction.
Mistake
A mistake can occur either when the terms of the will do not conform to the testator’s real intention, or when the will accurately reflects what the testator intended, but the testator’s intention was based on a mistake of fact or law that led to the creation of the will. In this case, Florida law allows a court to reform the will and conform it to the testator’s true intent. In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.
General Consequences
If any of the abovementioned scenarios occur, the judge can determine the partial or entire invalidity or revocation of the will, which carries its particular set of consequences. However, the judge can simply deny a will contest, case in which the will is deemed valid, and the court will abide by its terms as originally written.
