Florida Will Contests: Grounds, Timeline, and What to Expect

A will contest is a legal challenge to the validity of a deceased person's will. In Florida, these challenges must follow specific rules — including a strict deadline — and are decided by the probate court. Whether you believe a will was signed under someone else's pressure, when the decedent lacked the mental ability to make one, or you want to understand how to defend a will you are administering, this guide covers the essential law.

Who Can Contest a Will in Florida

Not everyone has the legal standing to challenge a will. Under F.S. 731.201, a will contest may be filed by an interested person — defined broadly as:

Heirs (those who would inherit under intestate succession if there were no will)
Beneficiaries named in the will being challenged
Beneficiaries named in a prior will who would receive more if the current will is invalidated
Creditors in some circumstances
Trustees and other fiduciaries with an interest in the outcome

If you were not in line to inherit anything — and you would not benefit if the will were thrown out — you generally do not have standing to contest it.

Grounds for a Florida Will Contest

Florida Statutes Section 732.5165 sets out the grounds on which a will can be declared void. The contestant must prove at least one of the following:

1. Lack of Testamentary Capacity

The person who made the will (the "testator") must have been of sound mind when the will was signed. Florida law requires the testator to:

Know the nature and extent of their property
Know who the natural objects of their bounty are (typically family members)
Understand the nature of making a will and how the will distributes their property
Be able to relate these elements to one another and form an orderly plan of distribution

This is a relatively low bar — the law does not require great intelligence, memory, or judgment. A testator can have dementia and still have testamentary capacity on a good day. Contestants who rely solely on a dementia diagnosis typically face an uphill battle unless there is evidence the will was signed during an incapacitated period.

Medical records, testimony from the attorney who drafted the will, and statements from witnesses present at signing are all commonly used evidence.

2. Undue Influence

Undue influence occurs when someone substitutes their own wishes for those of the testator — pressuring, manipulating, or coercing the testator into making a will that does not reflect their true intentions. The classic pattern involves a family member or caregiver who isolates the elderly testator, controls access to information, and uses that position to procure a favorable will.

Florida's Presumption: Under F.S. 733.107(2), if a person had a confidential relationship with the testator and was active in procuring the will, a presumption of undue influence arises. Once the presumption is established, the burden shifts to the person defending the will to rebut it.

A confidential relationship exists when one person places trust and confidence in another's integrity — often a caregiver, a child who took on a primary support role, or a trusted advisor. "Active in procurement" typically means the person recommended the attorney, was present during attorney consultations, or drove the testator to the signing.

3. Fraud

If the testator was deceived into signing a will — for example, told that the document they were signing was something other than a will — that is fraud and renders the will void.

4. Duress

Duress means the testator signed the will because of threats, force, or coercion. Pure duress cases are relatively rare but do arise in situations of elder abuse or domestic control.

5. Mistake

In limited circumstances, a court can correct a will that fails to express the testator's true intent due to a scrivener's error — a mistake in drafting. Florida courts have become more willing to consider extrinsic evidence of testator intent to reform a will, particularly after the Florida Supreme Court's adoption of the Restatement approach.

6. Improper Execution

A Florida will must comply with the formalities under F.S. 732.502: it must be in writing, signed by the testator (or someone directed by the testator in their presence), signed in the presence of two witnesses, and the testator must sign or acknowledge the will in the presence of those witnesses. Failure to meet these requirements makes the will invalid as a matter of law — no need to prove anything about mental state or influence.

The 3-Month Deadline: Notice of Administration

Florida's will contest deadline is tied to the Notice of Administration — the formal notice the personal representative sends to beneficiaries and heirs at the start of the probate. Under F.S. 733.212 and related provisions, a person who receives a Notice of Administration has 3 months from the date of service to file a petition contesting the will.

Missing the 3-month window is fatal to the claim. Courts strictly enforce this deadline and rarely grant extensions.

If no Notice of Administration was ever served — for example, if the interested person was not properly identified or notified — a different deadline applies: 2 years from the date of death. This outer limit comes from F.S. 733.212 and the general limitations framework, and it protects claimants who were never given formal notice of the probate.

The practical takeaway: if you believe a will is invalid, act immediately when you receive the Notice of Administration. Do not wait to see how the administration unfolds.

Filing a Caveat Before Probate Opens

If you are concerned that a will may be filed with which you disagree, and probate has not yet been opened, you can file a caveat with the probate court under F.S. 731.110. A caveat is a notice to the court that you claim an interest in the estate and want to be notified before any proceedings are commenced.

The filing fee for a caveat in Florida is $42. Once a caveat is filed, the court must provide notice to the caveator before admitting a will to probate or appointing a personal representative. This gives you time to appear and object at the earliest stage of the proceeding.

Burden of Proof

The person contesting the will generally bears the burden of proving invalidity by a preponderance of the evidence — meaning it is more likely than not that the will is invalid on the claimed ground. The exception is undue influence: once the contestant establishes the presumption (confidential relationship plus active procurement), the burden shifts to the proponent of the will to show by a preponderance that the will was not the product of undue influence.

Courts are reluctant to invalidate wills without solid evidence. Disappointed family members who simply disagree with the testator's choices — for example, a parent who left more to one child than another — do not have a legal claim unless they can point to one of the recognized grounds.

No-Contest (In Terrorem) Clauses

Many Florida wills include a no-contest clause — a provision that says any beneficiary who challenges the will forfeits their inheritance. Under F.S. 732.517, these clauses are enforceable in Florida but only to the extent specified in the will itself.

Before filing a will contest, any beneficiary who stands to lose under a no-contest clause must weigh the risk carefully: if the challenge fails, they may receive nothing. The legal analysis should include reviewing the exact language of the clause and consulting an attorney about whether a probable cause exception might apply.

What Happens During a Will Contest

A will contest is litigated within the probate proceeding. The process typically includes:

Filing the petition contesting the will
Discovery — depositions of witnesses, the drafting attorney, medical providers, and anyone who had contact with the testator near the time of signing
Expert witnesses — physicians or neuropsychologists may testify on capacity; forensic document examiners may be used if execution is in question
Pre-trial motions
Trial — bench trial before the probate judge (Florida will contests are heard by the judge, not a jury, unless a separate civil action is filed)

Will contests are expensive and time-consuming. Many resolve in mediation or negotiated settlement before trial. Estate administration is stayed — or at least paused as to distribution — while the contest is pending.

How Administration Proceeds During a Contest

The personal representative typically continues to administer the estate while a contest is pending — collecting assets, paying administration expenses, and managing the estate. However, distributions to beneficiaries are held until the contest is resolved. The result is that the administration process continues but the estate cannot be closed.

If the contest is successful and the will is invalidated, the court looks to whether a prior valid will exists. If there is one, that will controls. If there is no prior will, the estate passes by Florida's intestate succession laws.

Defending a Will

If you are serving as personal representative of an estate where someone has filed a will contest, your responsibility is to defend the will as written. You should:

Retain litigation counsel with probate experience promptly
Preserve all relevant documents — the original will, attorney drafting files, correspondence, medical records
Interview witnesses who were present at signing
Work with the drafting attorney, who may have notes on the testator's capacity and lack of undue influence at the time

Frequently Asked Questions

How much does a will contest cost?

Will contests are among the most expensive forms of probate litigation. Attorney fees, expert witness fees, and discovery costs can easily reach $20,000 to $100,000 or more depending on complexity. Most attorneys handle will contests on an hourly rate rather than contingency, though arrangements vary.

Can the personal representative be removed during a contest?

Yes. If the personal representative is also the person accused of procuring the will through undue influence, an interested person can petition for their removal or for appointment of a special administrator to manage the estate neutrally during the contest.

What is the difference between contesting a will and contesting a trust?

Trusts are not probated through the court system, so challenging a trust follows a different procedure. Florida's trust code provides a separate process for challenging revocable trusts, with its own standing rules and deadlines under F.S. 736.0604. The substantive grounds (capacity, undue influence, etc.) are substantially the same.

What if the will was prepared by the person who benefits from it?

This is a significant red flag. If the primary beneficiary of a will is also the person who found and hired the drafting attorney, drove the testator to the signing, or was present in the attorney's office, a strong presumption of undue influence may arise. Florida courts have found undue influence in exactly these circumstances.

Related Guides

Sources:

"Florida Statutes Section 732.5165 — Void or Voidable Wills," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/732.5165
"Florida Statutes Section 733.107 — Burden of Proof," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/733.107
"Florida Statutes Section 731.110 — Caveat," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/731.110
"Florida Statutes Section 732.517 — Penalty Clause for Contest," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/732.517
"Consumer Pamphlet: Probate in Florida," The Florida Bar, 2024, https://www.floridabar.org/

This guide provides general information about will contests in Florida. Litigation is highly fact-specific. Consult with a Florida probate litigation attorney for advice about your situation.