Proving a Will is Invalid

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Just because someone wrote down what should happen to a person’s property after their death doesn’t mean they created a valid Will. Find out what a Will needs to include to be enforceable in a Florida probate court and what you will need to know when proving a will in invalid.

Proving a Will in Florida Probate Court

After a person dies, their heirs must open an estate in Florida probate court. This starts by submitting the deceased’s Will, and proving it is valid. Florida law, like most other states, has a variety of technical requirements that must be met for the Will to be enforced:

  1. It must be in writing (you cannot make an oral promise to give something to someone after you die)
  2. It must be signed by the testator (the person who died) at the end of the document, or the testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction
  3. It must have been signed or acknowledged in the presence of two witnesses
  4. The witnesses must sign the will in the presence of the testator and each other

When it comes time to open the estate, the heirs must present evidence to the court that the Will was authentic. Because each witness sees the other witness sign, as well as the testator sign or acknowledge their signature, they can testify to the fact that it was signed even after the testator has died.

Florida’s Self-Proving Will

Tracking down witnesses and bringing them to court to testify about the validity of a Will is difficult, and sometimes expensive. To avoid that, Florida probate law allows a self-proving Will. This Will must be signed by the testator and the witnesses in front of a notary, who also signs the Will. The extra level of formality gives the probate court confidence that the document is authentic, was prepared properly, and reflects the intent of the testator.

When is Contesting a Will Permitted?

Even when all the technicalities have been met, sometimes a document is provided to the Florida probate court that should not count as a valid Will. You can contest a Will or a part of a Will for several reasons, such as:

  • That the testator lacked mental capacity at the time the Will was signed (such as dementia or Alzheimer’s disease)
  • That the gifts described in the Will were based on delusional thinking (such as giving gifts to a person who was already dead at the time the Will was entered)
  • That a beneficiary committed fraud to fool the testator into giving them a testamentary gift
  • That a beneficiary exerted undue influence on the testator to convince them to change their estate plan

However, to raise any of these concerns, or to challenge the technical aspects of a person’s estate plan, you need to follow certain steps in contesting the will. After a deceased’s heirs open estate proceedings with the Florida probate court, they are required to send a “Notice of Administration” to interested persons, including the deceased’s:

  • Surviving spouse
  • Beneficiaries
  • Trustees and trust beneficiaries
  • People who may be entitled to exempt property (usually the deceased’s surviving spouse or children)

Once you have been served with a notice of administration, you only have 3 months to contest the Will. This is done by filing an objection in the Florida probate court that challenges the Will’s validity, and states the grounds for the court to find the Will was invalid. This 3 month time period for contesting a Will can only be extended if the personal representative who sent the notice misstated the time limit for filing Will challenges.

Proving a Will is Invalid

It isn’t enough for you to say a Will is false, you need to prove it. This can be difficult because by definition, the probate court will not see a Will until after the person entering it has died. The judge can’t just ask the person who wrote it what they meant. Contesting a Will requires different evidence depending on why you say it is invalid. Here are some examples:

Proving an Invalid Signature

If you say the testator’s signature is false or invalid, you will need to provide other samples of the testator’s signature and may need the testimony of a handwriting expert about the differences. However, “Florida courts are reluctant to invalidate a properly-witnessed will as a forgery, even when a handwriting expert concludes that the will is forged, because, no matter how qualified the expert is, the expert’s report is merely secondary evidence to eyewitness testimony.” Ellis v. Warner, 2018 WL 4846762, *6 (S.D. Fla. 2019).

Mental Incapacity

Where you are challenging the Will because of mental incapacity, you will need to present evidence of a medical diagnosis or witness testimony that the testator was not of sound mind at or around the time the Will was signed. This often involves expert testimony by the deceased’s doctors.

Insane Delusion

Proving an insane delusion will require testimony by witnesses who observed the testator’s state of mind at the time the Will was signed. It may also require proof that things were not as the testator believed. In certain circumstances, Florida law allows the court to consider outside evidence by witnesses to show problems with the Will’s construction, so witnesses are allowed to testify about what the deceased said to them that suggested they were delusional when the Will was signed.


In fraud cases, you will need to show the specific, intentional steps the beneficiary took to cause the testator to make or change their Will. This could take the form of false statements, such as saying a son or daughter’s marriage was unstable and they would likely get divorced before the person’s estate is finalized. However, it can also involve the execution of the document itself, such as having the testator sign something he or she hadn’t read or telling them it wasn’t a “real” Will.

Undue Influence

Showing that a beneficiary inappropriately affected a person’s estate plan can be especially difficult. Proving undue influence generally requires an in-depth look at the time leading up to the signing of the Will. The person exerting undue influence often takes steps to hide what they are doing from other natural heirs and beneficiaries. Florida probate law shifts the burden of proof in undue influence cases once certain elements are established. When contesting a Will for undue influence, you must show evidence that the beneficiary:

  • Gets substantial benefit under the Will
  • Had a confidential relationship with the testator
  • Engaged in “active procurement” of the Will.

Once you show this, it will be up to the beneficiary to prove the Will was valid and they didn’t do anything inappropriate to influence the testator’s opinions before the estate plan was signed. However, the presumption does not arise in cases involving spouses. This is because Courts have held that the confidential relationship between spouses is not to be considered in will contests. This does not mean that a spouse cannot be found to have exerted undue influence, but it must be proven with direct evidence.

Contesting a Will in Florida probate courts can be difficult. Proving that a will is invalid can take careful attention to detail and an understanding of everything from mental capacity to signing formalities. At Harrison Estate Law, P.A., our experienced estate and probate team understands how important it is for your loved one’s true wishes to be honored after their death. We can help you investigate your loved one’s choices around the Will and decide if there are grounds to challenge it. We will help you be 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.

Categories: Litigation, Probate