You may have strong feelings about the way you want your affairs handled after your death. You may believe (rightfully) that an heir will not handle their inheritance well, or that a spouse or family member should not receive a share of your assets. In these cases, having a Will is not enough. You need to avoid those family members contesting your Will. In Florida Wills, that can be tougher than you think.
Florida Says No to a No-Contest Clause in a Will
In most other states, testators (people writing Wills) have a powerful tool to avoid a future Will contest: the no-contest clause. This is the language written into the Will that says if an heir files a Will challenge and fails, they get nothing from the estate. These clauses give your beneficiaries and natural heirs reason to consider the strength of their case before filing a Will contest. However, in Florida Wills, no-contest clauses are unenforceable. This means that a beneficiary, natural heir, or another interested person can contest a Will if they don’t like its contents.
How to Make a Will that Cannot be Contested
Without a no-contest clause, your Will is vulnerable to challenges from beneficiaries upset by your last wishes. You should take steps to make sure your Will can survive that legal challenge.
1. Start Early, Before Any Incapacitating Illness or Disease
Many Will challenges are based on the question of whether the testator (you) was in a proper state of mind at the time the Will was written. Challenges to a person’s mental capacity, delusional thinking, and undue influence all start from the premise that you didn’t mean what the Will says.
To avoid this, start planning your Will early -- before you have received any diagnosis that could affect your mental capacity. Remember that you can always make adjustments later on. It is better to have a version of your Will in place when it is clear you were making your own choices, than to have a family member challenge the Will after your death.
2. Protect Assets from a Florida Will Contest Using a Trust
If you want extended control over your assets beyond your death, a revocable living trust may help to avoid losing that control to a Will contest. However, you should note that the legal standards for challenging a trust are the same as the standards for challenging a will. The main benefit of a revocable trust for purposes of avoiding a will challenge is that the challenge is procedurally more difficult for the will challenger to bring, forcing the challenger to spend additional time and money to challenge the will. A revocable trust also makes it much easier to shield information from the prying eyes of a potential will challenger.
3. Execute the Will Properly
Next, pay close attention to the technical aspects of Will preparation. Here’s where your estate planning attorney can help you. To be enforceable, a Will must be:
Signed by the testator at the end of the document or subscribed with the testator’s name by some other person in the testator’s presence at the testator’s instruction (if, for example, the person is unable to hold a pen)
Signed or acknowledged by the testator in the presence of two witnesses
Signed by the witnesses in the presence of the testator and each other
If all of that sounds technical, it is. However, these details help ensure that the words on the page actually convey your intent. If you believe a family member may be unhappy with the contents of the Will, some attorneys will recommend that you record the Will signing. There’s no right answer to that scenario, but we tend to believe that a video recording of the signing may actually make it easier for a skilled probate litigation attorney challenging the will to selectively use a confused look or an inaccurate statement caught on video as adverse evidence.
It can also raise an issue because, unless the attorney video records every signing, the Will challenger’s attorney will put the attorney who oversaw the signing on the witness stand and ask them why they felt they needed to record this particular signing. That could be a tough question to answer!
4. Talk to Your Family About the Will’s Contents
Once your Will is complete, don’t keep it a secret. Have a conversation with your beneficiaries and your natural heirs about the terms of your Will. This isn’t holding their inheritance over your family’s head. Instead, it demonstrates the reasons behind your choices and gives them time to understand your wishes. Testimony about these conversations or copies of the emails or letters you send to loved ones can also demonstrate that you were thinking clearly when you made the choices you did.
5. Review Your Will Regularly
It is always a good idea to review your Will regularly -- at least every three to five years -- to keep everything up to date. If you believe a family member may go to court contesting a Will in Florida probate court, that review becomes even more important. By sitting down with your estate planning attorney to review your estate plan on a regular basis, you are building a record of your ongoing wishes. Even if nothing changes in your Will, your attorney will have notes that you reviewed the Will and it is still what you want for your estate.
Top Tip to Create a Florida Will that Cannot be Contested: Get Help from an Estate Planning Attorney
Many Will challenges come from Florida residents trying to do their estate planning themselves with forms they found online, or through a handwritten Will. These challenges can be made far more difficult for uncooperative heirs simply by working with an experienced estate planning attorney. Your lawyer knows how to preserve your wishes and protect your Will from its contests based on execution technicalities and capacity concerns. In some cases, an estate planning attorney can even testify to your wishes during Will contest litigation in the Florida probate court, which McCabe G. Harrison has actually done on one occasion (the will was ultimately upheld).
At Harrison Estate Law, we know how important it is to protect your Will from future challenges by unhappy beneficiaries. We always analyze and prepare for the possibility of will challenges, and will work hard to protect your wishes and your family for years to come. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville or are practicing social distancing, we are happy to set up a phone or Zoom call.