Contesting a Will in Florida: What a Challenger Must Show

This page is the responsibility of Leslie V. Marenco, Trust Counsel, PL, Coral Gables, Florida.

Short Answer: Why Contested Wills Are Hard to Overturn

Winning a contested will is hard because the person challenging it must prove a specific legal defect.

Florida law addresses how the burden of proof is allocated in proceedings that contest a will. The person offering the will must first show it was signed and witnessed properly. After that, the challenger must prove the grounds for the contest (Fla. Stat. § 733.107). Deadlines are strict, too. A late objection can end the case before its merits are heard.

Whether a contest succeeds depends on the facts in the file. Those facts include how the will was signed, the testator’s condition at that time, and who took part in the planning. This page covers the deadlines, the grounds, and the proof that usually matters. For the broader picture, read our trust litigation guide.

Who Can Contest a Will in Florida and by When

An interested person served with a notice of administration has 3 months after the date of service of a copy of the notice to file an objection to the validity of the will, the venue, or the jurisdiction of the court. Miss that window and the objection is barred.

After a death, the personal representative (often called an executor) must promptly serve a notice of administration on the listed persons who are known to the personal representative, such as the surviving spouse. That includes the surviving spouse and beneficiaries (Fla. Stat. § 733.212). The objection must challenge the will’s validity, the venue, or the court’s jurisdiction. Objections not filed on time are forever barred.

The 3-month period can be extended only for estoppel based on a misstatement by the personal representative about the deadline. It cannot be extended for other reasons, including misconduct. The statute also sets an outside limit: the earlier of the final discharge order or 1 year after service. Fla. Stat. § 733.212 reads: “(d) That persons who may be entitled to exempt property under s. 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property.” Subsection (3) of Fla. Stat. § 733.212 provides: “Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.”

Two more rules matter. A contest cannot begin before the testator dies (Fla. Stat. § 732.518). Note the date of service. For what happens when a will is not admitted, see what happens if a will is not probated in Florida.

What Are the Legal Grounds for Contesting a Will in Florida?

The main grounds are defects in signing, a testator who was not of sound mind, and a will procured by fraud, duress, mistake, or undue influence. Each ground needs its own proof.

Signing defects come first. A will must be in writing. The testator must sign at the end, or another person must sign the testator’s name at the end in the testator’s presence and by the testator’s direction. The testator’s signature or acknowledgment must happen in front of at least two attesting witnesses. The witnesses must sign in the presence of the testator and of each other (Fla. Stat. § 732.502).

Capacity is the second ground. To make a will, a person must be of sound mind and either 18 or older or an emancipated minor (Fla. Stat. § 732.501). A challenger who says the testator lacked sound mind must focus on the time of signing. Records from around that date often matter most.

The third ground covers fraud, duress, mistake, and undue influence. A will is void if its execution was procured by any of these. If only part was procured this way, that part is void. The rest stays valid if it is not invalid for other reasons (Fla. Stat. § 732.5165). The Florida Courts fraud and undue influence memorandum explains how these claims are defined.

Who Carries the Burden of Proof

The person who offered the will must first show it was properly executed. The challenger must then prove the grounds for the contest.

Florida’s burden rule starts with the will’s formalities. The proponent must establish the will’s formal execution and attestation. Under Fla. Stat. § 733.107, a self-proving affidavit executed in accordance with s. 732.503 is admissible and establishes prima facie the formal execution and attestation of the will. After that, the contestant must establish the grounds on which probate is opposed (Fla. Stat. § 733.107).

A self-proved will makes the early stage easier for the person offering it. It does not end the contest. A challenger can still prove a defect such as undue influence or lack of sound mind.

Undue influence has its own rule. The presumption of undue influence shifts the burden of proof. It implements public policy against abuse of fiduciary or confidential relationships (Fla. Stat. § 733.107). Facts about who held a confidential relationship with the testator, and who took part in the will’s creation, can carry real weight.

What Evidence Tends to Decide a Will Contest

Evidence about the signing and the testator’s condition usually decides a contest. Documents and timing tend to count for more than family disagreement.

Start with the signing itself. Who was in the room? Who arranged the meeting, and who brought the draft? Witness accounts of what happened at the signing can be central.

Next, look at the testator’s health. Physician notes, care records, and medication history from the weeks around the signing can show what the testator understood then. Records from months earlier may say less about that day.

Then look at the will’s history. Prior wills, earlier drafts, and the timing of any change show whether the will shifted sharply. A sudden change that favors one person can support an undue influence claim, especially if that person helped arrange the will.

Finally, gather records early. Keep the original documents, emails, texts, letters, and the notice of administration together. A written timeline helps any later review.

How Often Do Contests Succeed?

How hard is it to win a contested will? No single rate fits every contest, because each one turns on its own evidence and ground. Strong, specific proof of a statutory ground tends to shape the outcome more than the size of the estate or how strongly the family feels.

A contest can be hard to win even when a family feels wronged. Results depend on the facts, so a general summary cannot predict how a specific file will turn out.

Some contests end in a negotiated settlement before trial. The American College of Trust and Estate Counsel notes that disputes among beneficiaries, family members, or creditors can lead to court involvement (ACTEC, inheritance and estate settlement).

Can a Will Be Overridden, and Can a Parent Leave a Child Out?

Some property passes outside a will. Beneficiary designations, joint ownership, and trusts can change who receives what. Those arrangements matter when you check the full picture of an estate.

A surviving spouse has a separate right. The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate, called the elective share (Fla. Stat. § 732.201).

The challenge must rest on a ground such as improper signing, lack of sound mind, or undue influence. For how beneficiary changes work, see who has the right to change beneficiaries.

Common Myths and How Families Reduce the Risk of a Contest

Myth: a no-contest clause stops every challenge. In Florida, a will provision that penalizes an interested person for contesting is unenforceable (Fla. Stat. § 732.517).

Myth: a beneficiary who witnesses a will voids it. A will or codicil is not invalid because an interested witness signed it (Fla. Stat. § 732.504).

Practical steps can reduce the risk of a contest:

• Follow the signing formalities, including two attesting witnesses signing in each other’s presence.
• Consider a self-proving affidavit at signing (Fla. Stat. § 732.503).
• Keep beneficiaries out of drafting meetings and the signing room.
• Update the will when circumstances change, and keep notes on why.

These steps cannot prevent every challenge. For the separate question of changing an irrevocable trust, see how difficult is it to change an irrevocable trust.

Next Steps If You Are Facing a Will You Question

If you doubt a will, start by writing down the key dates and gathering the records you already have.

If you are handling a parent’s or relative’s estate while a will you doubt is already in play, the timing can feel rushed. Many people are still trying to understand what happened at the signing. That is a normal place to be.

Useful records include:

• The signed will and every copy you can find.
• The notice of administration and the date it was served on you.
• Medical and care records from around the signing.
• Prior wills, drafts, and any letters about the will.
• Texts, emails, or notes about who arranged the will.

Keep the 3-month objection deadline in view. Gathering records early makes any later review easier. Trust Counsel, PL offers a free initial consultation, which is confidential and carries no obligation to continue. To talk through the deadline and the evidence in your situation, call (305) 707-7126 or schedule online.

Frequently asked questions