The Florida Bar
American Bar Association
Weston Florida Chamber of Commerce

How to Attack a Will in the State of Florida

There are only certain situations in which a Will can be challenged in the State of Florida. There must be evidence that something was wrong with the will and that the person contesting the will would be entitled to inherit from the Estate if there was no Will.

The first method of attach on the Will is to challenge the mental capacity of the decedents. The creator of a will has to know what their properties are and their liabilities. The creator has to have “testamentary capacity” at the time of make the will. If medical records can be produced or other relevant evidence introduced which demonstrates that an individual lacked the capacity to execute the will. It may be necessary to produce the physician who examined the Decedent or who had knowledge of their mental condition at the time the Will was executed.

The second issue which creates an attack on the Will is fraud. Fraud can occur when the person does not know they are signing a Will. Additionally, the Will may not be executed by the party in the Will - (Fraudulently Executed). Finally, the individual may be under a mistaken belief as to the distribution of their assets to an heir.

Third, undue influence can be exerted upon a person to execute a Will to a particular person’s benefit. Caretakers, friends, lovers, nurses, children or other people who are in a position of authority can use their undue influence to induce them to change or create a will. This is where someone who the Testator or creator of the Will has a confidential relationship and has influenced the Testator or creator in a way as to benefit that person in a way that normally they would not benefit.

Finally, if a will is not properly executed, then the Will may be subject to challenge. A Florida Will must comply with the Statute of Wills and be signed by the creator in the presence of two witnesses who each see the signing process. In addition, a notary public must authenticate the signatures and verify that the people are who they say they are. If a Florida Will or Trust was not witnessed properly it may be subject to invalid.

Florida requires a will to be in writing, signed at the end by the person making the Will; the witnesses and the Creator of the Will have to be in the same room, at the same time.

Sometimes a person will try submitting an old Will, one that has been replaced by a more recently executed Will. The more recent Will is the valid Will, and by producing the most recent Will, the former Will is voided.

If there is a concern over a future challenge of a Will, the suggestion is often made that the signing of the documents be videotaped to provide a record of the state of mind of the signor, since the signor will not be able to testify after his or her death. Videotaping must be done securely and carefully and is done to show the state of mind at the time of execution of the Will.

If you need more information on how to attack a Will and wish to speak with a Probate Attorney, please contact Kenneth M. Kaplan, Esquire at 954-260-5479.

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