I Want to Challenge My Parent’s Will, but There’s a No-Contest Clause. Is This Enforceable in Florida?

A no-contest clause states that if someone mentioned in the will contests it and loses, they will receive no inheritance. The purpose of this clause is to deter will contests and ensure that the will is executed exactly as the testator (the person who died and left a will) wrote it. Under Florida law, no-contest clauses are neither valid nor enforceable. Similarly, Florida law does not enforce no-contest clauses in trusts either.

Many wills and trusts have no-contest clauses because most other states allow them. If the testator wrote the will while living in another state but died as a resident of Florida, then Florida’s laws would prevail and the clause would not be enforceable.

There are five valid reasons that would allow an heir or beneficiary to contest a will. One of the reasons is lack of testamentary capacity, which means that the testator lacked the mental capacity to fully understand what they were doing when they drafted the will. Having dementia, Alzheimer’s, or other cognitive impairment are some examples of having a lack of testamentary capacity. To win a will challenge, you will need to show through medical records and witness statements that the testator did not understand what they were doing when they signed off on the will.

Another reason for contesting a will is undue influence. This occurs when a family member, friend, or caretaker coerces or threatens the testator into leaving them a greater inheritance than they would have received otherwise.

Suspected fraud is a valid reason to contest a will as well. An example of fraud would be if someone misrepresented the contents of the will or that the document was a will. Another reason an heir may choose to contest a will is improper execution. For a will to be valid in Florida, it must be voluntarily signed by the testator and two witnesses at one time. The final reason to contest a will is if it contains a mistake.

To contest a will, you must either be an heir under Florida’s intestacy laws, a beneficiary named in a prior version of the will, or someone with a financial interest in the estate. If you fall into one of these categories and believe that a will is invalid, contact an experienced probate litigation attorney, such as the attorneys at Huth, Pratt & Milhauser. Your attorney will investigate the case to determine if there is enough evidence to contest the will. If your attorney believes there is enough evidence, they will file a petition in court to challenge the will. To find out if a will contest may be an option in your situation, contact Huth, Pratt & Milhauser for a no-fee initial consultation.