Estate Planning · Florida · Probate
How to Contest a Will in Florida
Miguel is 58, lives in Jacksonville. His father Ernesto passed six months ago, leaving behind a modest estate — a $240,000 house, a $90,000 checking account, and a 2019 Toyota Camry. Ernesto's last will, signed three months before his death, leaves everything to his girlfriend of 14 months, cutting out Miguel and his sister Carmen entirely.
There's a problem — and also a possibility. A family attorney drafted a different will ten years ago, one that split the estate equally between the two kids. Miguel is sitting at his kitchen table with both documents wondering: “Can we fight this?”
The answer is: maybe — but Miguel has a deadline he doesn't know about. In Florida, the window to challenge a will can be as short as three months from the date you received formal notice of probate. If that clock runs out, the will is admitted, the estate is distributed, and the door closes — regardless of how strong the case might have been.
Florida courts will enforce whatever valid will is submitted to probate unless someone with legal standing objects on legitimate grounds — and does it in time. This article walks through exactly what Miguel needs to know: who can contest a will, what grounds are recognized under Florida law, how the process works, and when it doesn't make sense to fight.
Who Can Contest a Will in Florida? (Standing)
Before you can challenge a will in Florida, you must have legal standing. Not everyone who feels left out qualifies. Under Florida Statutes §731.201(23), a will contest must be brought by an “interested person” — someone with a legally recognized stake in the estate.
Who Qualifies as an Interested Person
- Heirs at law: People who would inherit under Florida intestate succession if there were no valid will. Adult children are the clearest example — if Ernesto had died with no will at all, Miguel and Carmen would each receive 50% of his estate.
- Beneficiaries named in a prior will: If a prior will named you and the new will cuts you out, you have standing based on your interest under the earlier document.
- Creditors (in limited circumstances): Creditors have standing when a will is being used to defeat a legitimate debt claim.
Who Does Not Qualify
- Disappointed relatives: A cousin who expected to be remembered but has no legal entitlement has no standing to contest. Hurt feelings are not a legal basis.
- Friends: Close friendship with the deceased, even a decades-long relationship, does not create legal standing in Florida.
Miguel and Carmen's standing:
As adult children of Ernesto, Miguel and Carmen are his heirs at law. If Ernesto had died intestate — with no will at all — they would each inherit 50% under F.S. §732.103. They also have standing under the prior will — they were named beneficiaries before it was superseded. Either basis gives them standing to file. But standing is the threshold, not the finish line — they still need a valid legal ground.
For a deeper look at what happens when there is no valid will at all, see our guide on what happens if you die without a will in Florida.
The Deadline — The 3-Month Rule
This is the section Miguel needs to read first. Florida's will contest deadline is strict — and it can expire before most families realize probate has even started.
Two Deadlines, Depending on How You Were Notified
| Notice Type | Statute | Deadline to Contest |
|---|---|---|
| Formal notice — served directly on you (mail or hand delivery with a copy of the Notice of Administration) | §733.212 | 3 months from date of service |
| Publication notice — notice published in local newspaper (for creditors and potential contestants whose addresses are unknown) | §733.2123 | 3 months from first publication |
If you received formal notice — a physical mailing of the Notice of Administration — your three months started running on the date of service. The personal representative is required to serve heirs and beneficiaries under §733.212. If no one can locate you and only publication notice was given, the clock runs from the first newspaper publication date.
What happens if you miss it: The will is admitted to probate and becomes final. The estate is distributed. You lose the right to contest — not because your case was weak, but because the deadline passed. Florida courts rarely grant exceptions.
Miguel's situation — urgency is real:
Miguel's father died six months ago. Probate may have opened shortly after — and the Notice of Administration may have already been mailed. If Miguel received that notice and hasn't filed, his three months may already be running. He needs to call a Florida probate attorney this week, not next month.
The Four Legal Grounds to Contest a Will in Florida
Having standing and meeting the deadline are prerequisites. But to actually succeed in a will contest, you need a recognized legal ground. Florida courts recognize four.
Ground 1: Lack of Testamentary Capacity
Under F.S. §732.501, a person must be at least 18 years old and of sound mind to make a valid will. “Sound mind” has a specific legal meaning in Florida — it is tested against a four-part standard:
- 1. Nature and extent of property: Did Ernesto understand what he owned?
- 2. Natural objects of bounty: Did he understand who his family was — his children and natural heirs?
- 3. Nature of the act: Did he understand he was making a will and what that means?
- 4. Relationship between these elements: Could he hold all of this in his mind at once and appreciate how they relate to each other?
Critical nuance: capacity is assessed at the time of signing
It does not matter whether Ernesto had good days and bad days. The legal question is whether he had capacity at the specific moment he signed the will. Mild dementia does not automatically equal lack of capacity. A person can have a diagnosed cognitive condition and still execute a valid will during a lucid interval. The burden of proof is on the person challenging the will — and it is a high bar.
Evidence that matters: Medical records from the period surrounding the signing, testimony from the attorney who drafted the will, notes from the signing appointment, witness testimony about Ernesto's mental state at that time.
Applied to Miguel:
Ernesto had a stroke six months before he signed the new will. Miguel recalls that in the weeks following the stroke, Ernesto sometimes couldn't remember Carmen's birthday — a fact about the “natural objects of his bounty.” If medical records document cognitive impairment during that period and can be correlated to the signing date, this is a credible ground.
Ground 2: Undue Influence
This is the most commonly litigated ground in Florida will contests. Under F.S. §732.5165, a will or codicil that results from undue influence is void. To establish undue influence, a contestant must show:
- 1. A confidential or fiduciary relationship between the testator and the beneficiary who allegedly exerted influence.
- 2. Active procurement of the will — the beneficiary was directly involved in getting the will made.
- 3. The beneficiary is the one who exerted the influence and is the one who benefits.
The Presumption of Undue Influence
Florida law is powerful here. Once a contestant establishes that (a) the beneficiary had a confidential relationship with the testator AND (b) the beneficiary was active in procuring the will, a presumption of undue influence arises. The burden then shifts to the beneficiary to rebut the presumption. Instead of Miguel having to prove undue influence, the girlfriend has to prove it didn't happen.
Active procurement can be shown by evidence that the beneficiary: selected or recommended the attorney; drove the testator to the appointment; was present at the signing; knew the contents of the will before it was signed; or arranged for the appointment at all.
Red flags courts watch for: Social isolation of the testator from family; a sudden, dramatic change from a prior estate plan; a new romantic relationship of short duration; and the beneficiary accompanying the testator to the attorney's office.
Applied to Miguel:
Ernesto's girlfriend of 14 months drove him to the appointment, was in the waiting room during the signing, and introduced him to the attorney she “knew.” That is textbook active procurement. Combined with a confidential relationship (she was his romantic partner and caregiver), the presumption of undue influence is very likely to arise. The girlfriend would need to demonstrate that Ernesto's decision was truly independent and autonomous.
Ground 3: Fraud or Forgery
There are two types of fraud in will contests:
- Fraud in the inducement: Someone lied to the testator to get them to change the will. Example: Ernesto's girlfriend falsely told him that Miguel had stolen money from him, causing Ernesto to cut Miguel out in anger. The lie that induced the change makes the will invalid.
- Fraud in the execution: The testator was deceived about what they were signing. Example: “Dad, this is just a power of attorney form” — when it was actually a will. If Ernesto didn't understand he was executing a will, the document is void.
- Forgery: The signature on the will is not the testator's. This requires handwriting analysis and forensic examination of the document.
Evidence needed: Handwriting expert analysis, testimony from the witnesses who observed the signing, document forensics (paper age, ink analysis), and records from the attorney who drafted the will.
Ground 4: Improper Execution
Under F.S. §732.502, a valid Florida will must satisfy three requirements:
- 1. In writing (oral wills are not valid in Florida)
- 2. Signed by the testator (or by another person in the testator's presence and at the testator's direction)
- 3. Signed by two witnesses in the testator's presence, and in each other's presence
Common misconception: notarization
Florida does NOT require notarization for a will to be valid. Notarization is required to make a will “self-proved” — meaning it can be admitted to probate without additional witness testimony — but the will itself is valid without it. The critical requirement is the two-witness rule, and specifically that the witnesses signed in the testator's presence and in each other's presence.
Common defect: The testator signed and left the room, then the witnesses signed without the testator being physically present. Or the witnesses signed separately — first one, then the other, in different locations. Either scenario may invalidate the will.
Applied to Miguel:
Looking at both wills side by side, Miguel notices that one witness signature looks uncertain and shaky — and the same person appears to have signed both wills as a witness, years apart. That is worth examining. A handwriting expert can evaluate whether the signatures are authentic. More importantly, the attorney who supervised the signing should be deposed to confirm the execution procedure was properly followed.
The Contest Process: Step by Step
- Step 1: Hire a Florida probate litigation attorney.
Estate planning attorneys draft wills and trusts. Probate litigation attorneys fight over them in court. These are different skill sets. Miguel needs a litigator with will contest experience — not the same attorney who helped Ernesto write his first will a decade ago. Florida Bar Board Certification in Wills, Trusts and Estates or Civil Trial Law are markers of relevant experience. For guidance on vetting estate attorneys, see our article on how to choose an estate planning attorney in Florida.
- Step 2: File a petition in the probate court.
The contest is filed in the probate court in the county where Ernesto lived and where the estate is pending — Duval County, in Miguel's case. The petition identifies the specific grounds for the challenge and asks the court to refuse admission of the contested will or revoke its probate if already admitted.
- Step 3: Serve all interested parties.
All beneficiaries and heirs who have an interest in the estate must be served. This includes the personal representative (the girlfriend, in this case, if she was named to that role), and anyone else with a stake in the outcome.
- Step 4: Discovery.
This is where the case is built or broken. Miguel's attorney would depose the attorney who drafted the new will, the two witnesses who signed it, and the girlfriend. Medical records from the period surrounding the signing are subpoenaed. Phone records and text messages may reveal the extent of the girlfriend's involvement in procuring the will. Bank records can document financial influence.
- Step 5: Mediation.
Florida probate courts frequently order mediation before trial. This is often where contested estates are resolved — both sides face uncertainty at trial, and a negotiated settlement avoids the expense and unpredictability of a judge's ruling. Many will contests settle at mediation, not at trial.
- Step 6: Trial — or settlement.
If mediation fails, the case proceeds to trial before a probate judge. The judge determines whether the will was validly executed and whether any of the grounds for contest have been proven. Jury trials are generally not available in Florida probate proceedings.
| Factor | Typical Range |
|---|---|
| Timeline to resolution | 6 months to 2+ years |
| Attorney fees (contingency) | 25%–40% of recovery |
| Attorney fees (hourly) | $300–$600/hr (Florida probate litigators) |
| Cases that settle vs. go to trial | Majority settle at mediation or before trial |
Get clear on the fee structure before signing an engagement agreement. A contingency arrangement means the attorney only gets paid if you recover — but the percentage taken from a recovery can be significant. An hourly arrangement means you pay whether you win or lose.
What Happens If You Win — And What You're Actually Fighting For
Winning a will contest does not automatically mean you get everything. The outcome depends on what was in place before the contested will.
If the Contested Will Is Invalidated
- Prior valid will governs: If Ernesto's 10-year-old will is valid and properly executed, it becomes operative. Miguel and Carmen each receive 50% of the estate, as that will directs.
- No prior valid will: If the contested will is thrown out and no prior will exists, Florida's intestate succession laws under F.S. §732.102–§732.103 control. With no surviving spouse, the estate passes to descendants — meaning Miguel and Carmen inherit equally.
- Partial invalidation: Courts can strike specific provisions while preserving the rest of the will. For example, if only the bequest to the girlfriend was the product of undue influence, the court might invalidate that bequest while leaving other provisions intact.
No-Contest Clauses: Florida Does Not Enforce Them
Some wills include an in terrorem clause — also called a no-contest clause — that threatens to disinherit anyone who challenges the will. Florida is one of the states that explicitly does not enforce these clauses. F.S. §732.517 provides that a provision in a will purporting to penalize a beneficiary for contesting the will is unenforceable. Miguel can contest without automatically forfeiting whatever interest he might hold under the prior will or under intestacy. The girlfriend cannot use a no-contest clause as a sword.
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Having grounds and having standing are not the same as having a smart case. Before filing, Miguel and Carmen need an honest conversation with their attorney about whether this fight makes sense.
Valid will, no genuine grounds
Just because you were left out does not mean the will is invalid. If Ernesto had capacity, acted freely, and followed proper execution procedures, he had every right under Florida law to leave his estate to whomever he chose — including someone his children disapprove of. Disappointment is not a legal ground. A court will not substitute its judgment for the testator's.
Costs vs. recovery: the math has to work
If the estate is worth $80,000 and a will contest costs $40,000 to litigate, the math does not work — even if you win. A contested estate is a litigation matter. Attorney fees in protracted cases can consume a substantial portion of the estate. Miguel and Carmen's combined potential recovery — roughly $330,000 if they prevail entirely — is significant enough to justify the expense of litigation. A smaller estate may not be.
Family relationships: consider the human cost
Will contests are adversarial. They involve depositions, subpoenas, document requests, and cross-examination. They can take years. If other family members are involved — cousins, aunts, uncles who saw Ernesto regularly — the contest will damage those relationships. For some families, the emotional toll outweighs the financial recovery.
Strong presumption of validity
Florida courts strongly presume that a properly executed will is valid. The party challenging the will bears the burden of proof. Suspicion, family stories, and gut feelings are not evidence. You need medical records, witness testimony, attorney notes, and documentary proof. If the evidence is thin, a good litigator will tell you so before you spend money on a losing case.
Frequently Asked Questions: Contesting a Will in Florida
Can I contest a will without a lawyer in Florida?
Technically yes — Florida does not prohibit pro se (self-represented) will contests. Practically, it is not advisable. Will contests involve probate procedure, Florida evidence rules, depositions, and legal standards that require experience to navigate. The opposing party — in this case, Ernesto's girlfriend — will have counsel. Representing yourself in adversarial probate litigation against an experienced probate attorney is almost certain to produce a worse outcome than hiring representation. Most probate litigators offer a free consultation — use it.
How long do will contests take in Florida?
The range is wide: from six months for a case that settles quickly at mediation to two or more years for a fully litigated trial. Complexity drives timeline — a case with disputed medical records, multiple witnesses, and contested documents takes longer than one where the undue influence is straightforward and the parties are motivated to resolve. Court dockets also vary by county; Duval County (Jacksonville) moves faster than some larger metro counties.
Does Florida have a no-contest clause?
Florida explicitly does not enforce no-contest clauses (also called in terrorem clauses). F.S. §732.517 provides that any provision in a will that penalizes a beneficiary for contesting is unenforceable. If Ernesto's will contained a no-contest clause, it has no legal effect in Florida. Miguel and Carmen can contest without fear of forfeiting anything they might otherwise receive.
What's the difference between contesting a will and contesting a trust?
A will contest challenges a document that goes through probate. A trust contest challenges the validity of a revocable or irrevocable trust. The legal grounds are similar — lack of capacity, undue influence, fraud, improper execution — but the procedural vehicle is different. Trust contests are brought under Florida's Trust Code (Chapter 736) and have their own standing requirements and deadlines. If Ernesto had placed his assets in a trust (rather than just having a will), the contest would proceed differently. See our overview of what a revocable living trust is and when you need one.
What if the will was handwritten (holographic)?
Florida does not recognize holographic wills — wills that are entirely handwritten and signed by the testator but not witnessed. Under F.S. §732.502, a valid Florida will must be witnessed by two people. A handwritten, unwitnessed document is not a valid will in Florida — it cannot be admitted to probate and does not need to be “contested” because it has no legal effect to begin with. (Note: some other states do recognize holographic wills; Florida does not. If a document was executed in another state with holographic will recognition, Florida may honor it under §732.502(2).)
Miguel and Carmen: The Resolution
Miguel calls a Jacksonville probate litigation attorney the morning after reading about the three-month deadline. The attorney reviews the Notice of Administration — it was mailed six weeks ago. There are six weeks left on the clock.
The attorney files a petition challenging the will on two grounds: lack of testamentary capacity (Ernesto's vascular dementia diagnosis documented four months before the will was signed) and undue influence (the girlfriend selected the attorney, drove Ernesto to every appointment, and was present in the office during the signing).
During discovery, the attorney deposes the girlfriend. She confirms she knew the drafting attorney personally, arranged the appointment, and drove Ernesto every time. Ernesto's own physician submits records documenting vascular dementia — a progressive condition that affected his short-term memory and executive function. The doctor notes that during the period the will was signed, Ernesto had difficulty tracking multi-step information and often relied on the girlfriend to remind him of basic details about his family.
The girlfriend agrees to mediation. Her attorney knows the presumption of undue influence has been triggered, and the medical records are damaging on the capacity argument. Both sides have something to lose at trial.
Settlement: the estate is divided 40% to the girlfriend — reflecting her genuine 14-month relationship with Ernesto and her role in his care — and 60% split equally between Miguel and Carmen.
Miguel receives $99,000 in cash from the checking account proceeds. The Jacksonville house goes to Carmen, who agrees to buy out Miguel's share at a negotiated price. Carmen also keeps Ernesto's Camry. The case closes in eleven months from the filing of the petition.
What changed: Miguel called the attorney. He had six weeks left on the clock when he did. If he had waited another two months — telling himself he'd “look into it later” — the will would have been admitted, the estate distributed, and the door permanently closed.
Note: This article is educational and does not constitute legal or tax advice. Florida will contest procedures, probate deadlines, testamentary capacity standards, and undue influence law are complex and fact-specific. The outcome in any given case depends on the specific evidence available. Consult a licensed Florida probate litigation attorney for guidance tailored to your situation. The legal citations and statutory references in this article were accurate as of the publication date and may be subject to legislative or regulatory change.
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