Challenging the Validity of an Out-of-State Will
Executing a will is not an issue people think about very often, but it becomes vitally important after a person dies. All wills must go through the probate process, with the principal purpose being to ensure the directions included within it are valid, and if so, that they are followed. Determining the validity of a will is one of the first matters a probate court will handle, and interested parties do have the ability to challenge its acceptance and administration. Probate is technical and complex, and the litigation it can produce is often some of the most heated disputes that are filed in court. If a family member feels unfairly treated in a will, he/she will look for any reason to challenge it, and being executed in another State could be the opening he/she needs to contest its validity. In most cases, a Florida court will accept a will executed elsewhere, but establishing it was executed properly, or does not otherwise violate Florida law, could be complicated and time consuming if years or decades have passed since it was drafted. Further, there are some wills Florida will not recognize, even if valid when executed in another State. Understanding the grounds that are most commonly used to challenge a will is important for family members and personal representatives to better determine when a challenge is necessary. A review of the types of wills Florida will never recognize, and the two most standard claims used to contest a will presented to probate, will follow below.
Wills Florida Will Not Recognize
Wills must be executed with a set amount of formality before a court will recognize them. While most wills will be sufficient, two are specifically designated as automatically invalid under Florida law – holographic and nuncupative wills. Holographic wills are handwritten and have no witnesses, and nuncupative wills are oral with no writing, and are usually recorded as an audio or video file. Neither of these attempts to direct the dispose of property will work in this State, and if these are the only wills a person has, they will be rejected and the intestacy laws (according to blood relation) will be used to determine how property is divided.
Grounds to Challenge Wills
Generally, two basic grounds are used to challenge a will – a failure in proper execution, such as the two types described above, or the presence of undue influence in the creation or revision of the document. A properly executed will is written, signed by the testator (person making the will), and witnessed by two other individuals, who must also sign. All signatures must be made in the presence of the other parties and at the same time. What counts as being in the presence of one another is not always straightforward, but being around a desk or table at the same time is usually enough. The other piece in proper execution is that the testator be of sound mind and understand the consequences of the actions he/she is taking. This means knowing what property they own and who they intend inherit it.
The other common ground for challenging a will is undue influence. Undue influence occurs when a third party is in a confidential or trust-based relationship with the testator and uses this position to influence the terms of the will in his/her favor. The influencer must be shown to have received a substantial benefit, which is fact specific, and evaluated by assessing a number of factors, such as whether he/she knew the attorney who drafted the will, the amount of time between the will’s execution and the death, and if he/she would have received the same amount under a prior will.
Contact a Florida Probate Attorney
Probate is a necessary part of settling a person’s estate, but is not always easy to complete. Every circumstance is different, and some call for challenging the validity of a will to ensure the right outcome is achieved. The attorneys at the office of Joyce A. Julian, P.A. have extensive experience with the probate process, and can help you challenge a will if necessary. Contact the Fort Lauderdale law firm at (954) 467-6656 for a free consultation.