Defending a Will Challenge
July 28th, 2021
If you are an executor or personal representative of an estate, you don’t want to be served a complaint challenging the validity of your loved one’s Will. Defending a Will challenge can be emotionally taxing and will delay your family’s ability to receive their inheritance and bring closure to a loved one’s death. As a personal representative, it will be up to you to resist an unhappy heir’s legal claims by defending a Will challenge in the Florida probate court.
Step 1: Talk to 2 Lawyers: The Estate Planner and the Will Contest Lawyer
The lawyer who wrote your loved one’s Will is a powerful witness in any Will challenge defense. The estate planning attorney can testify to your loved one’s wishes, state of mind, and whether all the technical details of a Will signing were met. However, that same lawyer can’t be the one to represent you in a will challenge defense. After all, who will ask them questions while they are on the stand testifying?
Instead, you will need to talk to two lawyers: the estate planner who will be a key witness and a Will contest lawyer who will represent the estate in probate court. If the firm that wrote the Will has a second probate litigation attorney, like we do at Harrison Estate Law, P.A., you may be able to have the same law firm that prepared the Will also defend it in Court.
Who Pays to Defend a Contested Will?
Hiring two lawyers, even if one is acting as a witness, may sound expensive. However, remember that the cost of legal services will generally come out of the estate itself. As a personal representative, you will not be personally responsible for the cost unless there is evidence that you violated your fiduciary duty to the estate or were not benefiting the estate.
Step 2: File an Answer Defending the Will Challenge
Once you hire your probate lawyer, they will help you prepare a formal answer to the complaint challenging the Will. What this looks like will depend on the reasons the Will is being challenged. However, it will generally respond to each claim and provide the Florida probate court with additional information about when and how the Will was prepared and signed.
Step 3: Gather Your Witnesses
Next, you will need to gather witnesses who can testify to what your loved one wanted when they signed their Will, and who knew about the decedent’s mental and physical health at the time. Every Florida will must be signed in front of two witnesses who sign the Will in front of each other, and they should also be notarized, although this is not technically required. These two witnesses will likely be the first people you turn to. However, you may also need to recruit:
- Family members
- Friends with whom the deceased discussed their estate plan
- Neighbors who saw their day-to-day capacity
- Treating physicians (more on that later)
- Any notary or law firm staff members who witnessed the Will signing
Step 4: Develop the Medical Defense to a Will Challenge
Several of the most common arguments challenging a Will involve your deceased loved one’s mental and physical health at the time the Will was executed. If the Will contest is based on a lack of mental capacity, an “insane delusion,” or undue influence, you need to be prepared to defend your loved one’s choices with medical records and doctors’ testimony related to their state of mind and their ability to make choices for themselves. Your probate litigation attorney can help you work with your loved one’s doctors to develop this defense and prepare their testimony.
Step 5: Attend the Will Challenge Trial
Just like any other litigation, unless the parties are able to settle their dispute, a complaint challenging a Will results in a trial in front of a judge. As the estate’s personal representative, you should plan to attend, and possibly testify. Your Will contest lawyer will work with you and the other witnesses to plan your defense and prepare your testimony.
Get Help Defending a Will Challenge
Defending against a Will challenge from an upset heir can be complicated and emotional, pitting family members against one another. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate your loved one’s choices around the Will and the formalities of its signing, so that you are prepared when the Will challenge goes to trial.
If you have received a complaint challenging the Will in your loved one’s estate, contact an experienced Florida probate attorney right away to protect your loved one’s true wishes and ensure your family members receive the inheritances they are entitled to. Contact us here or call 352-559-9828 to get help today.