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Wednesday, 09 May 2018 23:09

How Do I Challenge the Validity of a Will in Florida? Featured

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There are a number of situations where a party may need to contest the validity of a Florida will. One legal tool that a party may use to protect its interests is the filing of a “caveat.” This is essentially a notice filed with the probate court reserving the right to be notified if an estate has been opened.

Caveats are necessary because a person who files a will for probate–typically the personal representative named in the document–does not have to provide advance notice to any interested parties beforehand.

But if there is reason to challenge or contest the validity of the will, and therefore the personal representative's appointment, it is critical that any objecting parties are heard first. For this reason, Section 731.110 of the Florida Statutes expressly provides that once a caveat has been filed by an interested person–other than a creditor of the deceased–the will cannot be admitted to probate until the objector has a chance to be heard by the court.

 

Florida: A Caveat By Any Other Name Is Still a Caveat

Florida Probate Rules establish the necessary form for filing a caveat. Specifically, Rule 5.260 states the caveat should contain:

● the name of the deceased individual whose estate is the subject of the probate petition;
● the last four digits of the decedent's Social Security number or year of birth, assuming the objector knows this information;
● the objector's interest in the decedent's estate; and
● the name and mailing address of the objector.

Any filing that substantially contains this information should be treated by the probate court as a caveat even if it is not explicitly labeled as such. The Florida Second District Court of Appeals recently addressed this point in a pending will contest from Hillsborough County. The appeals court held a probate judge erred when he admitted a will to probate without first hearing an objecting party's contest.

The decedent in this case passed away nearly seven years ago. But nobody attempted to open a probate estate until five years later, when the personal representative nominated by a will purportedly signed by the decedent was filed with the court. The petitioner said an estate was necessary to probate a piece of real property in Hillsborough County, which under the terms of the will should pass to the decedent's sister and niece.

An objector filed a document labeled as an “Answer and Affirmative Defenses to Petition for Administration” with the probate court. The objector said he owned 50 percent of the real property in question, and he further claimed the will was invalid as the product of undue influence and fraud. The probate court admitted the will to probate without hearing or considering these objections.

The Second District said that was a mistake. Although the objector did not label his filing as a “caveat,” that is what it was, the appeals court said, and it substantially complied with the requirements of Rule 5.260. As a result, the objector was at least entitled to a formal hearing on his will contest.

 

Get Help With a Florida Will Contest/Challenge.

If you are involved in a will contest, either as a challenger or as the personal representative, it is important to work with an experienced Fort Myers probate administration lawyer who can guide you through the process. Contact the Kuhn Law Firm, P.A., today at 239-333-4529 to schedule a free estate planning consultation with a member of our team.

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