Probate Litigation - FAQs

A “will contest” is a formal challenge brought to the validity of a will, seeking to prevent or revoke probate of that will in favor of a prior will or intestacy. Bases for challenging the validity of a will include lack of capacity by the testator at the time of execution, undue influence, fraud, duress, or improper execution.

Any interested persons, typically heirs or beneficiaries who would stand to gain if the will is set aside, have standing to contest a will.

“Undue influence” refers to conduct, including over-persuasion, duress, force, or coercion, designed to diminish or overcome a person’s free will such that their Last Will and Testament reflects the wishes of the influencer rather than the testator. A number of factors are involved in assessing whether a person was the victim of undue influence by another, including, but not limited to, whether the alleged influence was present at the execution of the Will, whether the influence recommended the attorney who drafted the Will, whether the influencer provided any instructions related to the preparation of the Will, and whether the influence kept the original Will after its execution.

Evidence that supports an undue influence claim can include isolation, dependence, changed patterns of gifting, sudden attorney changes, beneficiary involvement in drafting, or secrecy around execution.

In order to validly make a Last Will and Testament, one must have “testamentary capacity” to do so, meaning one must be able to understand the nature and extent of their property, their relationship to those would benefit from their Will, and the practical effect of the Will itself. Disputes over testamentary capacity often require expert medical testimony.

No. A no-contest clause, or in terrorem provision, in a Will is invalid in Florida and cannot be used to prevent someone from challenging the validity of the Will. No-contest clauses typically state something to the effect of “If anyone challenges the validity of this will, the gift made to that person in this will is void.” While some states permit no-contest clauses, Florida does not, and the Court will ignore any such provisions in a Will sought to be probated in Florida.

If a will contest is successful and the challenged will is invalidated, the court may revive a prior valid will or the estate may pass by intestacy if no prior will exists

Who pays attorney’s fees in probate litigation can depend on the circumstances. The general rule in the United States is that each party pays their own legal fees and costs. However, a number of mechanisms exist by which one party can be required to pay a portion or all of the other party’s attorney’s fees. This is highly case- and fact-specific, so the ability to recover your attorney’s fees from the other side should not be assumed.