Contesting a Will in Florida: The Grounds, and the Three-Month Clock

The envelope arrives a few weeks after the funeral. It is titled "Notice of Administration," it is several pages long, and it reads like the sort of thing a lawyer sends because a rule requires it.

That is exactly what it is. It is also a starting gun, and most people who receive one put it in a drawer.

Under section 733.212(3) of the Florida Statutes, an interested person served with a copy of the Notice of Administration must object to the validity of the will, the venue, or the court's jurisdiction within three months of the date of service. Not three months from the death. Not three months from when you found a lawyer, or from when you learned what the will said. Three months from service.

Florida enforces this with something close to no exceptions.

Almost every part of a will contest is arguable. Capacity is arguable. Influence is arguable. Whether a signature was properly witnessed is arguable. The deadline is not.

The statute provides that the three-month period may be extended only for estoppel based on a misstatement by the personal representative regarding the time period — and it makes clear that other conduct does not extend it. An affirmative representation, a failure to disclose information, or misconduct will not buy more time. There is a further outer boundary: all objections must be filed no later than the earlier of the entry of an order of final discharge of the personal representative, or one year after service of the notice.

The practical consequence is stark. A person with a strong claim who waits four months has, in the ordinary case, no claim.

So if you have received a Notice of Administration and you think something is wrong with the will, the correct response is to speak to a lawyer this month. Not to gather evidence first. Not to talk to the rest of the family first. A lawyer can do those things inside the window; nobody can do anything outside it.

Four deadlines matter most. Objecting to the validity of the will, the venue, or the court's jurisdiction must happen within three months of service of the Notice of Administration on you, under Fla. Stat. § 733.212(3). The outer limit on all objections under that same statute is the earlier of the personal representative's final discharge or one year after service. A surviving spouse's elective share election is due at the earlier of six months from service of the Notice of Administration or two years from the date of death, under Fla. Stat. § 732.2135. And where a federal estate tax return is required, it is due nine months from the date of death, with a six-month extension available, under I.R.C. § 6075 and the Form 706 instructions.

This is a summary, not a substitute for advice, and it does not include every deadline that may apply to a given estate — creditor claim periods and other statutory periods run on their own schedules. Where a deadline matters to you, confirm it with a lawyer against the actual dates in your case.

When a Florida estate is opened, the personal representative is required to serve a Notice of Administration on specified interested persons — which typically includes the surviving spouse, beneficiaries, and the trustee of certain trusts.

The notice identifies the decedent, the file number, the court, the personal representative and their attorney, and it states the deadlines. Section 733.212(2) sets out what it must contain, including notice of the objection period, the requirements for claiming exempt property, and the surviving spouse's elective share rights.

Two things follow. First, the notice is the document that tells you a probate exists and what you have to do about it — which is why the date you were served is the single most important fact in your file. Find the envelope, find the certificate of service, and write the date down.

Second, receiving the notice means someone has identified you as an interested person. It is not junk mail.

Florida recognizes a defined set of grounds. Disliking the outcome is not among them, and neither is the fact that a will is unfair.

Florida requires a will to be in writing, signed by the testator at the end, and signed by two attesting witnesses in the presence of the testator and of each other, per §§ 732.501–732.502 of the Florida Statutes. These formalities are strictly applied. A will that was signed correctly in a lawyer's office is rarely vulnerable here; a document prepared at home, or on a form downloaded and signed with one witness, sometimes is.

In a contest, section 733.107(1) places the burden on the proponent of the will to establish prima facie its formal execution and attestation. Once that is done, the burden shifts to the contestant on the remaining grounds.

The testator must have understood, in a general way, the nature and extent of their property, the natural objects of their bounty — the people one would ordinarily provide for — and the practical effect of the will.

The threshold is lower than people assume. A diagnosis of dementia does not by itself establish incapacity, because capacity is measured at the moment of signing and a person with a progressive condition may well have had a lucid interval. Conversely, a person with no formal diagnosis may have lacked capacity on the day. Medical records, the drafting attorney's file and notes, the observations of the witnesses, and contemporaneous accounts from people who saw the testator that week are what decide these cases.

The most frequently pleaded ground and the most frequently misunderstood. Undue influence is not persuasion, and it is not a beneficiary having been kinder or more present than the others. It is influence sufficient to overpower the testator's free will, so that the document expresses the influencer's intent rather than the testator's.

Where the presumption of undue influence applies, it operates as a presumption shifting the burden of proof — section 733.107(2) states that the presumption implements public policy against the abuse of fiduciary and confidential relationships. That is a meaningful procedural advantage, and establishing that the presumption applies is often the central battle of the case.

The facts that tend to matter: a confidential relationship between the testator and the beneficiary; the beneficiary's active involvement in procuring the will — arranging the lawyer, driving the testator to the appointment, being present at the signing, knowing the contents in advance; isolation of the testator from other family members; and a sharp, unexplained departure from a long-standing pattern of estate planning.

Narrower grounds. Fraud requires a misrepresentation that induced the will or a particular provision; duress requires coercion; mistake claims are limited, and Florida is generally unreceptive to arguments that a will does not say what the testator meant. Separately, sometimes the issue is not validity but which document governs: a later will revokes an earlier one, a will destroyed by the testator with intent to revoke is revoked, and where an original cannot be found and was last in the testator's possession, a presumption of revocation may arise.

An "interested person" — broadly, someone whose interest in the estate would be affected by the outcome. In practice: a beneficiary under the challenged will, a beneficiary under an earlier will who would take more if the challenged one falls, or an heir who would take by intestate succession if there were no valid will at all — see dying without a will for how that succession works.

The corollary is worth stating plainly. A person who takes nothing under the challenged will, nothing under any earlier will, and nothing under intestacy has no standing regardless of how strongly they feel. A close friend, a long-term unmarried partner without a devise, or a stepchild who was never adopted may have no legal interest at all — a hard conversation better had at the outset.

Many wills contain a clause providing that anyone who challenges the document forfeits their inheritance. In some states that is a real deterrent. In Florida it is not: section 732.517 provides that a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

This is worth knowing because the clause has its intended effect anyway on people who read it and assume it binds them. It does not. Whether a contest is a good idea is a separate question — but the in terrorem clause is not the reason to answer no.

A contest begins with a petition or other pleading requesting relief, filed in the probate proceeding within the objection period. In the Ninth Judicial Circuit, which serves Orange and Osceola Counties, probate matters are filed in the Probate Division, and the circuit publishes its own administrative orders, checklists, and procedural requirements governing filings. Those requirements are specific and they are enforced; filings that do not conform get returned, and a returned filing does not stop the clock.

Once a contest is filed, the matter becomes adversarial and is conducted with formal pleadings, discovery, and the rest of the apparatus of civil litigation. Discovery here is characteristically wide: medical records, the drafting attorney's file, financial records showing transfers during the relevant period, and depositions of the drafting lawyer, the witnesses, the treating physicians, and the family. Meanwhile formal administration does not simply stop — assets may still need to be preserved, managed, and in some cases sold while the contest proceeds, and notice to creditors and claims continue to run on their own schedule.

A great many contests settle, and a good number settle at mediation, which in Florida probate and trust disputes is a standard and often court-encouraged step.

Nobody can tell you at the outset. A contest that resolves at an early mediation may take several months and cost a fraction of what a tried case does. A contest that goes to a final hearing on capacity and undue influence, with expert testimony and full discovery, is a multi-year matter whose legal fees, expert fees, and court reporter costs can reach a significant proportion of the estate's value — and both sides typically incur them, out of what is often the same pot.

This is why the first question a competent lawyer asks is not "do you have a claim" but "what is this estate worth, and what is your realistic share of the difference between the two outcomes." A meritorious contest over a $180,000 estate can be economically irrational. The same claim over a $4 million estate is not. Not every dispute needs to become probate litigation at all; see mediation in probate and trust disputes for the alternative.

The math does not work, as above. You would not do better if you won — if the challenged will falls, the estate passes under an earlier will or by intestate succession, and sometimes that produces a worse result for the contestant than the document they are attacking; establish this before filing, not after. The evidence is not there — a firm conviction that a sibling manipulated a parent is not evidence, while medical records, contemporaneous documents, and third-party witnesses are. There is a better route — a dispute about a personal representative's conduct is not a will contest and is brought differently, a surviving spouse's claim is an elective share election rather than a contest, and a beneficiary who simply cannot get information is often better served by a demand for an accounting than by litigation. And the family relationship is worth more: this is not a legal consideration and it is frequently the decisive one. Clients who go to trial against their siblings usually do not have siblings afterward.

How long do I have to contest a will in Florida? Three months from the date the Notice of Administration was served on you, under Fla. Stat. § 733.212(3). The period may be extended only for estoppel based on a misstatement by the personal representative about the time period. All objections are subject to a further outer limit of the earlier of the personal representative's final discharge or one year after service.

What are the grounds for contesting a will in Florida? Improper execution, lack of testamentary capacity, undue influence, fraud, duress, mistake, and revocation. Unfairness is not a ground.

Does a no-contest clause work in Florida? No. Under Fla. Stat. § 732.517, a provision penalizing an interested person for contesting a will or instituting proceedings relating to the estate is unenforceable.

My father had dementia. Does that mean the will is invalid? Not by itself. Capacity is assessed at the moment the will was signed, and a person with a progressive condition may have had capacity that day. What decides these cases is evidence about that day and the period around it — medical records, the drafting lawyer's notes, and the accounts of the witnesses.

What happens to the estate while a contest is pending? Administration continues in modified form. Assets still have to be preserved and managed, and the court can address who is authorized to act and on what terms. It does not simply freeze.

If you have been served with a Notice of Administration and something about the will does not make sense, the most useful thing you can do is have the document and the dates reviewed now. Most people who lose the right to object lose it to a calendar rather than to the merits.

Yergey & Yergey, P.A. has practiced in the Orange County Probate Division for three generations, and handles our probate practice and trust disputes — and probate litigation in Orange County when heirs disagree — throughout Central Florida, including Orange, Seminole, Osceola, Lake, Brevard, and Volusia Counties.

Bring us the notice and the envelope. The date of service is where we start.