Guide · Probate Litigation
Contesting a will
in Florida.
Four grounds, one very short deadline, and an evidentiary record that has to be preserved before anyone realizes there is a case.
Short answer
A Florida will can be challenged on four grounds: defective execution, lack of testamentary capacity, undue influence, or fraud. The deadline is the part that decides most cases. A challenge generally must be filed within the earlier of 20 days after formal notice or three months after the notice of administration is served. Florida does not enforce no-contest clauses, so their presence is not a reason to stand down.
Most people who call about a will contest are not primarily angry about money. They are reacting to something that does not add up: a document signed weeks before death, a new beneficiary nobody had met, a caretaker who suddenly controlled access to the house, a version of a parent’s wishes that does not sound like the parent.
Some of those instincts are right and some are not, and the law draws the line in a specific place. This guide covers where.
At a glance
- Grounds
- Four
- Deadline
- Very short
- Who can file
- Interested persons
- No-contest clauses
- Unenforceable
- Burden
- Can shift
- Realistic cost
- Five to six figures
execution, capacity, undue influence, fraud
earlier of 20 days after formal notice or 3 months after notice of administration
beneficiaries and those who would inherit without the will
Florida does not enforce in terrorem clauses
a presumption of undue influence can move it to the proponent
depends entirely on whether it settles
The four grounds
Improper execution
Florida requires the testator to sign at the end of the will, in the presence of two attesting witnesses, who must sign in the presence of the testator and of each other. Miss a formality and the document fails no matter how clearly it states the testator’s wishes. This is the most objective of the four grounds and the easiest to prove or disprove, which is why home-made and out-of-state wills draw scrutiny.
Lack of testamentary capacity
The testator must understand, in a general way, the nature and extent of their property, the people who would naturally inherit, and the effect of signing. The standard is lower than most families expect: a diagnosis of dementia does not by itself establish incapacity, and capacity is measured at the moment of signing, not before or after. Medical records around that date usually decide it.
Undue influence
Not persuasion or a difficult personality, but influence that overpowers the testator’s free will so the document reflects someone else’s intent. Florida allows a presumption of undue influence to arise where a substantial beneficiary occupied a confidential relationship with the testator and was active in procuring the will. When that presumption applies, the practical burden shifts to the person defending the document, which changes the shape of the case considerably.
Fraud
Either fraud in the execution, where the testator is deceived about what they are signing, or fraud in the inducement, where they are lied to about facts that drive how they distribute. Fraud is pleaded less often than undue influence because it demands proof of a specific misrepresentation, and the same facts usually support the easier claim.
The deadline is the whole ballgame
More potential challenges die on timing than on merits. Once an estate is opened, interested persons are served with notice, and that service starts a short clock: generally the earlier of 20 days after formal notice of the petition, or three months after the notice of administration. These are not the multi-year limitations periods people are used to from other kinds of disputes.
The practical consequence is that if a court notice about a parent’s estate arrives and something about it feels wrong, that is a call to make that week. “I wanted to see how it played out first” is the single most common reason we have to tell someone there is nothing left to do.
What undue influence actually requires
This is the ground most contests run on, and the one most often misunderstood. Influence is not enough. Adult children who ask a parent for things, a new spouse a family dislikes, or a caretaker who is simply closer than anyone else does not make a will invalid. The document has to reflect someone else’s will substituted for the testator’s own.
Florida’s doctrine helps here. Where a substantial beneficiary stood in a confidential relationship with the testator and was active in procuring the will, a presumption of undue influence can arise, and the practical burden of coming forward shifts to whoever is defending the document. Active procurement is a facts-and-circumstances inquiry: who found the lawyer, who made the appointment, who provided the instructions, who was present at the signing, who kept the original. Those facts live in calendars, texts, and the drafting attorney’s file, which is why preservation matters immediately.
The claims that usually travel with a contest
A will challenge rarely arrives alone. Depending on the facts, the same estate may involve a elective share claim, where a surviving spouse takes 30 percent of the elective estate under §732.2065 regardless of the will; a petition to remove the personal representative under §733.504 for mismanagement or self-dealing; a homestead dispute between a surviving spouse and adult children; or claims against a trustee for breach of fiduciary duty. The trust side is covered in trust administration.
Where assets are actively being moved or spent, the priority is not the eventual trial. It is getting an order in place that stops the bleeding while the dispute is sorted out.
Deciding whether to bring it
We look at four things before filing: the strength of the procurement and capacity evidence, the size of the estate net of what it will cost to fight over, whether the assets are still there to recover, and whether the relationships involved can survive the process. Contests are expensive and they are hard on families, and the honest recommendation is sometimes not to bring one. When the facts are there, though, the short deadline means hesitation costs you the case.
Will contests, common questions
What are the grounds for contesting a will in Florida?
Four: the will was not executed with the formalities Florida requires, the testator lacked testamentary capacity when they signed, the will was the product of undue influence, or it was procured by fraud. Being treated unfairly is not a ground. A will that leaves everything to one child and nothing to another is valid if the testator knew what they were doing and chose freely.
How long do I have to contest a will in Florida?
Very little time, and this is what decides most cases. A challenge generally must be brought within the earlier of 20 days after receiving formal notice of the petition for administration, or three months after the notice of administration is served on you. Miss the window and the challenge is barred regardless of how strong the underlying facts are. If you have received anything that looks like a court notice about an estate, treat it as urgent.
Who is allowed to contest a will?
An interested person, meaning someone whose share of the estate would change if the challenge succeeded. In practice that is a beneficiary under the current will, a beneficiary under an earlier will, or an heir who would inherit under Florida’s intestacy statutes if no valid will existed. A friend, a caretaker, or a charity with no stake in either outcome cannot contest.
Does a no-contest clause stop me from challenging the will?
Not in Florida. Many wills contain a clause purporting to disinherit anyone who challenges the document, and Florida does not enforce them. That is a meaningful difference from a number of other states, and it means the presence of such a clause is not a reason to walk away from an otherwise legitimate challenge.
What evidence actually wins a will contest?
Medical records from around the signing date, the drafting attorney’s file and testimony, the witnesses to the execution, and evidence about who arranged the appointment, who drove the testator there, who was in the room, and who paid. Undue influence cases are usually won or lost on the procurement facts rather than on medical opinion, so preserve emails, texts, and calendars early.
What does a will contest cost?
It depends almost entirely on whether it settles. Many resolve at mediation once the documents and the drafting attorney’s file have been produced, and those cost meaningfully less than a case tried to judgment. A fully litigated contest with competing experts runs into six figures. Before filing, we look at the size of the estate, the strength of the procurement evidence, and whether the other side can actually pay a judgment, because a contest that costs more than it recovers is not a strategy.
Keep reading
Paul Kogan
Fort Lauderdale Litigation Attorney, The Kogan Firm, P.A.
- 17+ years
- Florida Bar
- Martindale Peer Rated
Probate Litigation
The clock is shorter than you think.
If you have received a notice about an estate and something looks wrong, call this week rather than next month. A free 15-minute conversation will tell you whether there is a claim and whether it is worth bringing.
This guide is general information about Florida probate litigation and does not constitute legal advice. Deadlines are short and fact-dependent; speak with an attorney about your specific situation immediately.