Contesting a Will in Florida
Fla. Stat. §§ 732.5165, 733.107, 733.212
To contest a will in Florida, an interested person files an objection in the probate case after the testator's death. The grounds are lack of capacity, undue influence, fraud, duress, mistake, improper signing or witnessing, and revocation. A person served with the notice of administration generally has 3 months from service to object (Fla. Stat. § 733.212).
What it is
A will contest is a challenge, made in the probate court, to whether a will or part of a will is valid. No contest may be started while the testator is alive (Fla. Stat. § 732.518). After death, a challenge can be raised before the will is admitted, as an objection to the petition for administration, or after admission, as a proceeding to revoke probate, which must begin before the personal representative's final discharge (§ 733.109(1)).
Only an "interested person" may contest: someone who may reasonably be expected to be affected by the outcome of the proceeding (Fla. Stat. § 731.201(23)). That usually means an heir who would inherit if the will failed, or a beneficiary under an earlier will, whom § 733.109(1) names expressly. A beneficiary who has already received complete distribution is not an interested person (§ 731.201(23)).
A contest does not have to attack the whole will. If fraud, duress, mistake or undue influence procured only part of a will, only that part is void, and the rest stands if it is otherwise valid (Fla. Stat. § 732.5165). If the whole will fails, the estate passes under any remaining valid will or, if there is none, under Florida's intestacy rules.
A clause in the will that threatens to disinherit anyone who contests is unenforceable in Florida (Fla. Stat. § 732.517). That does not make a contest free of risk: the court may charge attorney fees against a contestant's share of the estate (§ 733.106(4)), as explained below.
Grounds for Contesting a Will in Florida
Florida law recognizes these grounds for challenging a will or part of a will:
- Lack of testamentary capacity. Only a person who is of sound mind, and who is 18 or older or an emancipated minor, may make a will (Fla. Stat. § 732.501). Evidence usually centers on the testator's condition when the will was signed: medical records, the drafting attorney and the witnesses.
- Undue influence. A will or part of a will procured by undue influence is void (Fla. Stat. § 732.5165). In some cases a presumption of undue influence shifts the burden of proof to the person defending the will (§ 733.107(2)).
- Fraud. A will or part of a will whose execution was procured by fraud is void (Fla. Stat. § 732.5165).
- Duress. A will signed under duress is void to the extent the duress procured it (Fla. Stat. § 732.5165).
- Mistake. A will or part of a will procured by mistake is void (Fla. Stat. § 732.5165).
- Improper execution. The testator must sign at the end (or have another person sign the testator's name in the testator's presence and at the testator's direction), in the presence of at least two attesting witnesses, who must sign in the presence of the testator and of each other (Fla. Stat. § 732.502(1)).
- Revocation. A will is revoked by a later will or writing executed with the same formalities (Fla. Stat. § 732.505), or by burning, tearing, canceling, defacing, obliterating or destroying it with the intent to revoke (§ 732.506). A revocation procured by fraud, duress, mistake or undue influence is itself void (§ 732.5165).
Disagreeing with how a parent divided the estate is not, by itself, a ground. The question in every contest is whether the will is legally valid, not whether it is fair.
Deadlines for Contesting a Will
The clock usually starts with the notice of administration. The personal representative must promptly serve it on the surviving spouse, the beneficiaries and others listed in Fla. Stat. § 733.212(1). A person served with it must file any objection to the validity of the will within 3 months after service, or the objection is forever barred (§ 733.212(3)).
The 3-month period may be extended only for estoppel based on a misstatement by the personal representative about the deadline. It may not be extended for any other reason, including failure to disclose information or misconduct by the personal representative or anyone else (Fla. Stat. § 733.212(3)).
- Before death: no contest may be filed (Fla. Stat. § 732.518), but an interested person may file a caveat (§ 731.110(1)). A caveat filed before death expires 2 years after filing (§ 731.110(4)).
- Before letters issue: if the petitioner serves you with formal notice of the petition for administration, or you waive notice, you may challenge the will only in the proceedings before letters are issued (Fla. Stat. § 733.2123).
- After the notice of administration: 3 months from service on you (Fla. Stat. § 733.212(3)).
- Outer limit: all objections to the validity of a will must be filed no later than the earlier of the order of final discharge or 1 year after service of the notice of administration (Fla. Stat. § 733.212(3)).
- A later will turns up: when a will or codicil is admitted later, a new notice of administration must be served (Fla. Stat. § 733.212(7)). Appointing a successor personal representative does not restart the period unless a new will or codicil is admitted (§ 733.212(4)).
- While the contest is pending: the personal representative continues administering the estate but may not make distributions that conflict with the rights of those who would take if the will failed (Fla. Stat. § 733.109(2)).
Who Has to Prove What
The person offering the will goes first and must prove, prima facie, that the will was formally executed and attested. A self-proving affidavit under Fla. Stat. § 732.503, or an attesting witness's oath, is enough to do that (§ 733.107(1)). The burden then shifts to the contestant to prove the grounds for the challenge (§ 733.107(1)).
Undue influence can work differently. Where the presumption of undue influence applies, Florida treats it as a presumption that shifts the burden of proof, because it implements a public policy against abuse of fiduciary or confidential relationships (Fla. Stat. § 733.107(2)). Whether the presumption applies depends on the facts of the relationship between the testator and the person who benefited, and on that person's role in the will. That question is decided from Florida case law rather than the statute's text, so it is one of the first issues we analyze.
Filing a Caveat
An interested person who is concerned that a will may be admitted without their knowledge can file a caveat with the court (Fla. Stat. § 731.110(1)). Once a non-creditor files a caveat, the court may not admit a will or appoint a personal representative until the caveator has been served with formal notice of the petition for administration and had the opportunity to participate (§ 731.110(3)).
A caveator who lives outside Florida must designate an agent for service in the county where the caveat is filed, unless a Florida attorney who signed the caveat represents the caveator (Fla. Stat. § 731.110(2)). A creditor may file a caveat only after the death (§ 731.110(1)).
Attorney Fees in a Will Contest
A person nominated as personal representative who in good faith offers a will for probate receives costs and attorney fees from the estate even if probate is denied or revoked (Fla. Stat. § 733.106(2)). That means the estate, and so the beneficiaries, may pay to defend the will.
When fees are paid from the estate, the court may assess them against one or more persons' parts of the estate. It may consider the strength of each side's claims and objections, whether a person prevailed, and whether a person unjustly increased the fees (Fla. Stat. § 733.106(4)(c)), and it need not find bad faith (§ 733.106(4)(d)). A weak contest can be paid for out of the contestant's own inheritance.
Do You Need a Lawyer to Contest a Will?
A will contest is litigation: pleadings, discovery, depositions of the witnesses and the drafting attorney, medical records and often expert testimony about capacity. The 3-month deadline in Fla. Stat. § 733.212 runs whether or not you have a lawyer, and it cannot be extended because someone else concealed information. Counsel's first job is to confirm the deadline and test the grounds against the evidence. The second is to decide whether a negotiated resolution through probate mediation serves the family better than a trial. For an overview of other estate and trust disputes, see probate litigation.
Frequently Asked Questions
How long do I have to contest a will in Florida?
If you were served with the notice of administration, you have 3 months after service to file an objection to the will's validity, or the objection is forever barred (Fla. Stat. § 733.212(3)). The only extension is for a misstatement by the personal representative about the deadline. In any case, objections must be filed by the earlier of the personal representative's final discharge or 1 year after service of the notice of administration.
Who can contest a will in Florida?
An interested person, meaning someone who may reasonably be expected to be affected by the outcome (Fla. Stat. § 731.201(23)). That is usually an heir who would inherit if the will were invalid, or a beneficiary named in an earlier will (§ 733.109(1)). A beneficiary who has already received complete distribution is not an interested person.
What are the grounds to contest a will in Florida?
Lack of testamentary capacity (Fla. Stat. § 732.501); fraud, duress, mistake or undue influence in procuring the will (§ 732.5165); failure to sign and witness the will as § 732.502 requires; and revocation by a later writing or by a physical act done with intent to revoke (§§ 732.505, 732.506). A contest can target the whole will or only the part affected.
Can I contest a will before the person dies?
No. Florida law says an action to contest the validity of a will may not be commenced before the testator's death (Fla. Stat. § 732.518). An interested person who is worried about what will happen can file a caveat, before or after the death, so that they receive formal notice before a will is admitted (§ 731.110). A caveat filed before death expires 2 years after filing.
Will I lose my inheritance if I contest a will with a no-contest clause?
Not because of the clause. Florida makes any will provision that penalizes an interested person for contesting the will unenforceable (Fla. Stat. § 732.517). There is still financial risk: when attorney fees are paid from the estate, the court may assess them against a contestant's share, considering factors such as the strength of the contest and who prevailed, without any finding of bad faith (§ 733.106(4)).
Who has the burden of proof in a Florida will contest?
The person offering the will must first prove its formal execution and attestation, which a self-proving affidavit or an attesting witness's oath establishes (Fla. Stat. § 733.107(1)). The contestant then must prove the grounds for the challenge. Where the presumption of undue influence applies, it shifts the burden of proof to the person defending the will (§ 733.107(2)).
Does the estate stop while a will contest is pending?
No. The personal representative continues to administer the estate as if no revocation proceeding had been filed (Fla. Stat. § 733.109(2)). The one limit is that no distribution may be made to beneficiaries that conflicts with the rights of the people who would take the property if the will failed. Property sold in good faith to a buyer before probate is revoked stays sold (§ 733.109(3)).
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Considering a will contest, or defending one?
The deadline may already be running. Call (407) 843-0430 or schedule a consultation with an Orlando probate attorney to review the will, the notice of administration and the timeline.
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