Will Contest Attorney in Florida

Improper execution means the will was not signed or witnessed in strict compliance with the mandatory legal formalities required by Florida Statutes §732.502. A single mistake in the signing ceremony, such as a missing signature or an improperly present witness, can be a ground for invalidating the entire document. Specifically, for a valid will in Florida, the document must be in writing. The testator, who must be at least 18 years old and of sound mind, must sign the will at the end. Alternatively, another person can subscribe the testator’s name at the end in the testator’s presence and direction. This signing, or the testator’s acknowledgement of the signature, must be in the simultaneous presence of at least two attesting witnesses. Crucially, these two attesting witnesses must also sign the will in the simultaneous presence of the testator and of each other. Failure to meet this strict “in the presence of each other” requirement is a common cause of improper execution and a subsequent will contest. An improperly executed will can be declared void by a probate court, leading to the estate being distributed as if the deceased died without a will.

Generally, a testator’s mistake about facts, such as the identity of an asset or the welfare of a relative, will not invalidate an otherwise properly executed will. However, current Florida law permits the will to be contested on the specific statutory ground of mistake under §732.5165, which voids a will if its execution was procured by fraud, duress, undue influence, or mistake. Furthermore, Florida Statutes §732.615 allows an interested person to petition the court for the reformation of a will. The court may reform the terms of the will, even if unambiguous, to conform them to the testator’s intent if a mistake of law or fact is proven. This mistake must be established by clear and convincing evidence, which is a high legal standard. For a successful reformation, the evidence must clearly demonstrate that both the will’s terms and the accomplishment of the testator’s intent were affected by the error. For example, a clerical mistake listing the wrong bank account number can potentially be corrected to honor the testator’s true wishes. If the mistake is severe, such as a testator being induced to disinherit an heir based on a lie, a court might void the entire affected portion under the fraud or mistake statute. The law seeks to honor the testator’s true intent, but courts require compelling evidence before altering or invalidating a written instrument.

No, a will contest does not automatically halt the entire probate process in Florida, but it significantly impacts the proceedings. A will contest creates an adversary proceeding within the existing probate case, and this must be resolved before assets are distributed. Under Florida law, the court generally will not admit the contested will to probate or appoint a Personal Representative until the contest is resolved. An “interested person” who anticipates a contest should file a formal document called a caveat with the court. Filing a caveat is the most effective way to ensure that the court cannot admit a will to probate without serving formal notice on the caveator, providing a chance to object. Once the will has been formally admitted to probate, a party must file a Petition to Revoke Probate, which also initiates the legal challenge. While the litigation proceeds, the Personal Representative is typically limited to administrative tasks, as distributions must await the court’s validation of the will. Consequently, a will contest effectively freezes the distribution phase of the estate until the validity of the document is judicially determined.

Yes, it is absolutely possible for a contested will case in Florida to be settled without proceeding to a full trial. Florida law strongly encourages the resolution of disputes through alternative means, particularly in emotionally charged probate matters. Mediation is one of the most common methods, where a neutral third party assists the interested persons in reaching a voluntary, mutually acceptable compromise. In fact, many Florida circuit courts will actively mandate that parties participate in mediation before they are allowed to take a will contest to trial. Furthermore, Florida Statute §733.815 explicitly permits interested persons to enter into a written contract to alter the distributions they are entitled to. This allows the challenging party and the beneficiaries to craft a formal, binding settlement agreement that resolves the contest. Such a settlement, often a “global settlement,” is a legally enforceable contract once approved by the probate court. Resolving the matter through a settlement or mediation saves the estate substantial legal fees and avoids the uncertainty of a court ruling. Therefore, most will contests in Florida are resolved through a voluntary agreement long before a trial takes place.