Methods to Attack a Will

Have you been wrongfully denied your share in a will? If so, you may want to contest the validity of that will so that you may obtain your perceived share of the decedent’s estate. A will can be challenged in a Florida probate proceeding on a number of grounds.

Fraud – A person was fraudulently induced into signing their will through lies, trickery or deceptive acts. For example, decedent’s son places a document in front of his dad stating it is a form that needs to be signed for the mortgage on decedent’s home in Miami, Florida. The truth is that the form is not a mortgage but rather a will leaving the entire estate to his son.

Duress/Coercion – A person acts under duress when an unlawful threat or pressure forces that person to do something in their will that they would not normally do. For example, decedent’s daughter of Palm Beach threatens that she will physically hurt her father, unless he rewrites his will to leave at least half of his estate to her.

Undue Influence – When a lawyer, family member, friend or confidant through immoral acts or tactics takes advantage of another to procure an advantageous provision in a will or trust. Undue influence is similar to duress without the physical pressure. For example, when decedent had a diminished ability to provide for himself, his son paid for an estate planning attorney to set up decedent’s will. The son spoke often with the attorney and was there for every meeting concerning his father’s will including the will execution. As a result, decedent left his son the entire estate.

Lack of Testamentary Capacity – A person could not have understood what they were signing when their will was executed due to Dementia, Alzheimer’s, medication, etc. For example, decedent executed a will after being medically diagnosed with organic brain damage where he did not know his name, the year, or where he was. In the will he completely excluded his children who had all treated him very well in his late years.

If the will is held invalid, the court may invalidate all the provisions of the will or only the challenged portions. Additionally, a trust can be challenged under the same grounds.

You need to contest the will as early as possible in the probate process because there is not an unlimited amount of time to contest it. If you or someone you know is interested contesting a will, it would be best to consult an attorney to discuss your options.

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