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Challenging The Validity Of A Will


Drafting and executing a will is a significant legal and historical moment that marks how a person wants their property treated after death, a process that is completed in probate. A key component of any will, and one that determines whether it is valid or not, is the mental capacity of the person executing it. Wills potentially direct the distribution of large amounts of money and valuable property, which means there is the chance an unscrupulous family member or outside third party could try to manipulate a person into drafting a will in his/her favor, or cause a person with mental impairments to sign a will without the ability to understand the context or content of the document. To prevent such an unfair outcome, Florida law requires a person executing a will to be of sound mind, and if there is a question about a person’s ability to understand his/her actions or the contents of the document, grounds may exist to challenge the will’s validity in probate. What the law expects a person executing a will to understand, and how one would establish or contest the existence of a person’s mental capacity, will be discussed below.

Will Contest

A will contest is an adversarial proceeding initiated in the probate court that challenges the validity of a will based upon:

  • execution formalities (signature, witnesses, etc.);
  • the capacity of the creator;
  • undue influence (extreme outside pressure);
  • fraud (deceit); or
  • duress (threat of physical harm).

Challenging a will can only occur after the creator’s death, and potential heirs, beneficiaries and interested parties may have as little as 20 days to initiate a contest if a notice about the will’s administration was received before the will was placed in probate. At most, a person will have 90 days to challenge validity, which is still a tight deadline, and highlights why retaining an experienced probate attorney as soon as death occurs, if there is any possibility of a will contest, is so important.


Challenging a will based on a person’s capacity is one of the more common grounds claimed in will contests, which is likely reflective of the increasing amount of mental decline seen among the elderly as people now live longer. Importantly, the capacity to make a will is a lower standard than the cognitive awareness needed to have capacity generally for handling personal and financial affairs, for example. Legally, a person is considered to be of sound mind if he/she is able to generally understand:

  • the nature and extent of his/her property;
  • who would be the natural heirs (children, spouse, etc.); and
  • the practical effect of the will.

The law presumes the will’s creator is of sound mind, so the party challenging validity has the burden to show that capacity did not exist when the will was executed. Further, even if there are cognitive issues, this does not exclude the possibility that the person was lucid when the will was signed. Consequently, evidence of mental disability before and after the will signing could be used to show incapacity was continuous and permanent, and thus existed at the time the will was signed. Additionally, diagnoses of Alzheimer’s and dementia, being progressive and chronic conditions, are more convincing of a continuing mental disability due to their nature, and may also be used to show incapacity. The burden of showing a person who created a will was incapacitated at the time of execution is high, and a probate attorney experienced with litigation in this area is integral to getting a fair and proper result.

Get Legal Advice

Probating a will can be a complicated process, and Joyce A. Julian, P.A. can bring over thirty years of experience to help you achieve the result you want and deserve. Contact the Fort Lauderdale law firm for a free consultation.



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