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Learning that you’ve been left out of a will can be unsettling. Fortunately, there’s legal recourse – challenging the will. However, there are factors to consider before challenging a will.
First, assess your standing. If you are not family or were never named in a previous will, you may lack the legal standing to contest a will.
If you have a valid claim but were left out of a will, you may want to find out why. Individuals get left out of a will for various reasons. Yours might be intentional, as is the case with disinheritance.
Reasons for disinheritance include prior gifting. For example, you might have received an equally valuable gift. Another common ground for disinheritance is conflict over a child’s lifestyle choices.
Unintentional disinheritance is a common occurrence with pretermitted heirs – legal beneficiaries not captured in a current will because they did not exist at the time of creating the will. Florida considers only children and spouses as pretermitted heirs. Pretermitted heirs are entitled to the same share of the deceased’s properties as they would under Florida’s inheritance laws.
In Florida, claims of spouses and minor children take precedence over those of other beneficiaries. In addition, parents cannot disinherit a minor child. Neither can a decedent disinherit a spouse – unless they were divorced at the time of their death or they had a premarital or postmarital agreement. Moreover, a decedent may not leave a primary residence to someone other than their minor child or spouse.
You can contest disinheritance, intentional or not – if you have the legal standing. Grounds for contesting disinheritance include undue influence, fraud, forgery, and mental incapacitation. For example, may challenge a will on the grounds of undue influence if one of the beneficiaries duped or forced the will-maker into omitting you.
Just because you have a standing and the grounds to challenge a will doesn’t mean you should. Contesting a will can be a costly endeavor. So be sure what you stand to gain from successfully challenging a will is enough to cover the legal costs.
If you decide to contest the will, get a lawyer. An experienced attorney should be able to gauge whether your case is winnable or not. If your lawyer deems your case valid and worth it, they may file a contest.
Going to court is not the only solution, either. So, consider mediation. In mediation, a neutral third party helps you resolve the will dispute. Resolution via mediation isn’t as costly as litigation.
Mediation offers a chance for a win-win situation, helping preserve family relationships. If you go to court and succeed, the court distributes the deceased property following the State’s inheritance laws, which can be unfavorable to you.
Before contesting a will, consider the potential gain against the financial, time, and emotional cost. If you lack the legal grounds to challenge a will or consider a contest not worth it, walk away. If challenging a will is the best course of action, do it as soon as you receive notice of estate administration, as you only have a short window to do so, depending on your standing.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Laws regarding wills and probate vary by jurisdiction and individual circumstances. If you believe you have been wrongfully excluded from a will, consult a qualified attorney to understand your rights and options.
Published by Joseph T.
