J. Kelly Kennedy, Attorney/CPA, PLLC

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Attorney and CPA

Common reasons behind will contests

In most circumstances, probate courts in Polk County will honor a deceased person's will as long as it meets the execution requirements that support its authenticity. Likewise, courts presume that the will precisely addresses the testator's wishes, and they do not typically use liberal interpretations of the will's provisions. On the other hand, any person who has a potentially gainful interest in the will can challenge it.

One common reason for will contests is that the person challenging its provisions argues that the testator did not have testamentary capacity when executing their final will. A person making this kind of challenge essentially claims that the testator did not have a sound mind when signing their will. The specific circumstances and possible reasons why a person might not have the requisite mental capacity can include dementia, insanity and the influence of medication or some other substance.

Probate courts start with the premise that the testator did, in fact, have testamentary capacity when making their will. Therefore, the challenger to the will must try to prove that the testator did not understand the extent and value of their estate and did not fully grasp who their beneficiaries were or should have been. In addition, the will's challenger must show that the testator did not understand what their will meant and how their property would be distributed.

Like a showing that the testator lacked testamentary capacity, a challenger can prevail in a will contest by proving that the testator was a victim of undue influence. This can arise out of situations where someone forces the testator to execute their will by exerting physical force or doing anything else that deprives the person of making the will of their own volition. Furthermore, an interested party can successfully challenge a will by proving that it was the result of fraud or forgery.

Preparing a will is vital to ensuring that a person's wishes for the distribution of their estate are honored following their death. A thorough and legally binding will typically prevails against any potential challengers to the will. In certain situations where the will is legally tainted, however, Florida courts may not uphold it.

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