Having a will in place to ensure that one’s assets and family are taken care of after one’s passing is essential, however, sometimes family members may wish to contest that will and this can cause stress, pain, and hardships for those who have to settle the disagreements. Elder law provides a way to avoid this through the use of a terrorem or no-contest clause in a will, however, this is not available in Florida.
What happens if a family member contests a will?
When a family member or a devisee in a will contests the will they are attempting to persuade the probate court that the will was executed in some form or fashion that should not be upheld. For example, if Sally Doe leaves a will in New York that two of her three sons inherit a majority of the several properties she owned, while the third son only inherits personal property that Sally owned, then that third son may attempt to contest the will in probate court to try and get a better share of the inheritance. Most of the times this is done by unhappy family members who feel they have been “cheated” out of an inheritance by others in the family. However, this process can be avoided through careful will drafting and ensuring that the person leaving the will, in our example Sally, put in place language that would limit the ability of someone to contest her will after her death.
How do you stop a will being contested?
Sometimes family members or devisees in a will may try to contest the will for any given reason. It is not a situation that any family member would want to leave behind after their passing and the best way to avoid this is by ensuring that a will has a no-contest or terrorem clause in the will. A terrorem clause essentially states that any devisee in the will that attempts to contest the will shall not inherit under that same will. This clause works as a deterrent for any devisee that may attempt to contest your will so as to leave them out of the will should the will be affirmed. It may not stop someone completely from contesting the will, but it will remove all incentive of anyone from wanting to even try to contest a will. However, Florida does not support terrorem clauses in wills or trusts. Florida law finds such clauses in wills and trusts unenforceable.
What if a family member argues undue influence?
The most typical argument to contest a will is that someone exerted undue influence over the person who wrote the will. Continuing with the example of Sally Doe and her three sons in New York. The third son would most likely argue that the other two sons unduly influenced Sally during her last few days of life to change the will to exclude the third son from the major inheritances. This is commonly seen in probate proceedings contesting a will, however, there are ways to combat this. In addition to having the terrorem clause in a will it is also recommended to have non-family member witnesses at the signing of the will that can serve as witnesses to the writer’s ability to understand the will and exactly what they were signing as their last will and testament. Although it may not deter a family member completely from contesting the will, it will go a long way in ensuring that they are not successful.
