Avoiding Will Contests In Florida
The purpose of estate planning is to avoid any issues with how you want your asset distributed after your passing. However, it is generally impossible to make everyone happy, and it is more common than one might realize for estate planning documents to face some kind of challenge. Will contests happen in Florida for many different reasons, but in general, there are a few things that a person can do to minimize the risk. An attorney well versed in estate planning law can also be of substantial assistance.
Make Sure Your Will Is Valid
One of the easiest ways to minimize the risk of your will being contested is to ensure that your will is written in a way that clearly meets all the required criteria under Florida law. If your will is indisputably valid, there will be few to no grounds on which to contest the provisions. There are only a few specific criteria that one must meet in order to have a valid will: namely, that it must be in writing – no nuncupative (oral) wills are permitted – and it must be signed by the testator (the creator) and two attesting witnesses, all at the same time, in each other’s presence. The testator must also be able to demonstrate what is referred to as testamentary capacity – that is, the cognitive ability to make a will of their own volition.
That said, it is worth noting that in 2019, Florida passed the Electronic Will Act, which allows for remote online notarization of a will, and in some cases, for the required witnesses to sign a will electronically. The witnesses must still be “present” during a will signing – but the definition of “present” has changed to include online presence, such as through online meeting applications. Regardless, as long as your will is in writing, and signed by both the testator and two witnesses (one of whom is not a blood relative of yours), your will is generally seen as valid.
Avoid Accusations Of Undue Influence
In addition to alleged invalidity of the will, the other major cause of will contests in Florida is accusations of undue influence. Accusations of undue influence tend to arise when a testator (particularly one who is elderly or ill) suddenly makes a new will, without warning, that disinherits family or other people who are close to them, in favor of someone unrelated – for example, a new acquaintance, a business partner, or a caregiver who has not been with them very long. While the mere fact of making a new will is not proof of undue influence, it can get an inquiry started, so to speak.
There are several factors that a court will evaluate in determining whether undue influence has actually occurred. Generally, if a person (1) has had a confidential relationship with the testator; (2) was a substantial beneficiary under the will; and (3) “actively procured” the will – that is, was an active participant in creating the will that benefited them. While it is fine for you, as the testator, to listen to advice from others in creating your will, the end decision must be yours, and it is crucial that if you choose to benefit someone unusual, that you articulate your train of thought in doing so clearly.
Contact A Naples Estate Planning Attorney
If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience. This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.