On behalf of Law Offices of Frye, Fortich & Garcia, P.L. | Mar 2, 2018 | Estate Planning
If you feel that someone’s Florida will disinherited you or insufficiently provided for you, you may be wondering if you should challenge it. The first thing you need to know is that not everyone can challenge a will. You can only do so if you are an “interested party;” i.e., a close family member who has the legal right to inherit from the decedent had (s)he died without making a will.
A will challenge is difficult, and upwards of 99 percent of wills go through probate without one. There are only a few reasons why a probate court will overturn someone’s will, but if you can prove that one of those reasons applies to the will you are challenging, you may prevail.
Testamentary capacity
As FindLaw explains, the most common reason why a court voids a will is because the testator; i.e., the person who made the will, lacked the testamentary capacity to do so. “Capacity” in this sense means that at the time the testator created the will, (s)he had the mental ability to know what a will is and what its consequences are. If you challenge a will on the grounds of testamentary capacity, you must prove that the testator did not have sufficient mental capacity at the time (s)he created the will to understand the following:
- The extent and value of his or her property
- Who (s)he was naming as beneficiaries in the will and who Florida law expected him or her to provide for under normal circumstances
- What (s)he was giving to whom
- How all of these things worked together to create a valid distribution of his or her property
Undue influence
Another common reason for voiding a will is that someone such as a caregiver exerted undue influence on the testator at the time (s)he made the will. For instance, if you know your grandfather had a caregiver and you later discover that he left most of his property to that person in his will, it is possible that the caregiver unduly influenced him to do so.
This information is provided for educational purposes and should not be interpreted as legal advice.
