Do I Have a Good Case For a Will Challenge?

The process of challenging a loved one’s Will in Florida probate can be lengthy, complicated, and emotionally draining. That’s why, before you start the paperwork, you should sit down with an experienced Florida probate attorney and ask, “Do I have a good case for a Will challenge?” Here are some things to consider when answering that question.

Can You File a Will Challenge Case?

The first question that must be asked in deciding whether yours is a good case for a will challenge is if you have “legal standing” to file the will challenge case in the first place. Not just anyone can disrupt the Florida probate process of estate administration. If you want to file a Will challenge case, with limited exceptions, you generally need to be one of the following:

• A beneficiary or fiduciary named in the current Will
• Excluded from the current Will, but a beneficiary or fiduciary under a previous estate plan
• Entitled to inherit under the state’s intestacy law, which would apply if there was no Will (generally, the deceased’s closest relatives or “next of kin.”)
• The guardian of a minor child who fits one of the above categories (filing on their behalf)

Unless you have legal standing, you are not the right person to file a Will challenge. Even if there is reason to believe that the Will submitted to the probate court is outdated, incorrect, or fraudulently obtained, you will need to find someone who fits one of these categories to file the Will challenge instead.

Is There a Legal Reason to Challenge the Will?

You can’t just challenge a Will because you don’t like it. The Florida probate court’s goal in any estate administration case is to ensure that the deceased’s wishes are honored and that their assets and debts are resolved according to state and federal law. The best evidence of the deceased’s wishes is a properly executed Will or trust document. If you are going to challenge that Will, you need to have a strong legal reason to do so, such as:

• The Will was signed after the deceased was no longer mentally or physically capable of doing so (usually due to dementia or a final illness)
• The deceased was operating under a core belief of something that was not true (such as believing a would-be beneficiary had died)
• Fraud committed on the deceased to convince them to alter their estate plan
• The Will does not contain the legally required technical requirements that demonstrate it is authentic
• Someone with a close relationship actively procured the Will for their own benefit (this is called Undue Influence)

If you and your Florida probate attorney can demonstrate one of these things in a Will challenge case, you can have the Will set aside. Then the Florida probate court will either apply an earlier Will executed by the deceased or use the state’s intestate law to distribute the deceased’s assets to their closest living relatives.

Questions to Tell if You Have a Good Case for a Will Challenge

Once you and your probate attorney determine that you can file a Will challenge, the next question is whether you should. Whether you have a good case for a Will challenge depends on more than the legal theory behind the case. There are practical and personal aspects to consider as well.

Who is Your Trust or Will Challenge Case Against?

It is important to remember that, in most cases, when you file a Will challenge contest, you are taking your own family to court. Sometimes, the deceased may have named a professional trustee or personal representative to oversee the distribution of their assets. However, more often, Will challenges pit siblings against one another or arise from bad blood among relatives. Before deciding whether you want to file a Will challenge case, consider who will be sitting across the courtroom from you, and how that will affect your relationship after the case is closed.

How Much Do You Stand to Inherit?

Like most other lawsuits, Will challenge cases can cost several thousand dollars in attorney fees. Even if you win, with some limited exceptions, you will likely be responsible for paying your own lawyer. To have a good case for a Will challenge, the gains need to justify the cost. For some people, keeping a family heirloom may be priceless, but for many others, a careful cost-benefit analysis will be necessary to decide whether it is worth it to file a claim. Work with your probate attorney to determine your current inheritance (if any), your share of the intestate estate, and the value of any inheritance under a prior estate plan to decide if the lawsuit is worth the cost.

Can You Prove Your Will Challenge Case?

Many Will challenges are highly technical. They may depend on showing the deceased’s mental health or medical competency at a certain period of time, or they may require digging into the family finances to show that the estate is being mishandled. Before deciding if you have a good case for a Will challenge, your probate attorney may want to investigate the claim to make sure you have the proof you need if the case goes to trial. Work with your lawyer to gather the needed documents, records, and other evidence to prove the Will should be set aside.

Were Out-of-Court Negotiations Unsuccessful?

Filing a Will challenge is rarely the first step in addressing problems in an estate plan. Unless you are up against a deadline to preserve your claim, a lot can be gained simply by having your probate attorney talk to the personal representative or attorney for the estate. This goes back to the fact that most beneficiaries are family or close friends. Unless you are estranged from them, the other beneficiaries may be willing to agree to an out-of-court settlement that will address your concerns and provide for your needs after a loved one’s death. Even after a Will challenge case has been filed, many probate litigation lawsuits are resolved through mediation or informal negotiations between the parties. Trying to resolve the case out-of-court first can save you time, money, and damage to your family relationships.

Contact Us Today to See if You Have a Good Case for a Will Challenge

If you believe you are entitled to more than you are receiving in a loved one’s Will, it is worth asking if you have a good case for a Will challenge. At Harrison Estate Law, P.A., our experienced estate and probate team can help consider the legal, practical and personal aspects of deciding whether to file your case. We can negotiate with the personal representative, and will represent your interests in court, to make sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.