J. Kelly Kennedy, Attorney/CPA, PLLC

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Attorney and CPA

Writing a will that can withstand a legal battle

About 99 percent of wills go through Florida's probate courts without any serious issues. However, there are cases in which someone submits a legal challenge to a will. This is called a will contest, and it can be put forward by anyone with an interest in the outcome. When these challenges occur, Florida courts typically try to avoid invalidating a will, but they will do so if it failed to meet the formal requirements or was otherwise improperly executed.

For example, a daughter may contest a will when she expected to inherit much of her mother's estate, only to find out after her death that a suspicious-looking will left everything to her mother's nurse. In this case, the daughter could argue that the nurse coerced or manipulated the testator into executing the will, and therefore the will was created under undue influence and should be invalidated.

It's important to note, that there must be evidence of coercion or manipulation in order for a Florida court to throw out a will due to undue influence. The fact that the daughter was written out of the will is not, in itself, enough to show undue influence. The daughter must show that will really does not represent her mother's wishes.

In many cases, there may be a good reason why the person making the will, called the testator, favors one heir over another. For example, if a testator had a daughter and a son, and the daughter devoted a lot of time to driving the testator to medical appointments while the son was unable to help, it might be reasonable for the testator to favor the daughter in the will in order to pay her back. In this case, the son may feel that his sister had an unfair advantage in spending so much time with the testator, but he won't be able to show undue influence without further evidence of coercion or manipulation.

When they make a will, Florida residents want to protect assets and provide for their loved ones or favorite charities. They don't want to leave behind a legal battle. It's important when writing a will to think about how it could survive a will contest. It can also be important to discuss one's plans with family members beforehand so that the will does not come as a shock.

Source: MarcoNews.com, "It's The Law: Adult Child Caring For Parent Does Not Equal Undue Influence," William Morris, Aug. 15, 2013