How To Challenge a Will that is Already in Probate
Posted May 20, 2017 in Florida Probate LitigationFlorida Probate and Trust Litigation Blog
How Do I Challenge a Will that is Already in Probate?
What is a Petition for Revocation of Probate?
One of the most common calls that we get comes from a family member in Florida who received notice that a "bad" will was accepted by the court. Usually this family member has either been cut out of this "bad" will or their share of the estate has been reduced. The good news is that a will can be contested even though a court has preliminarily accepted it for probate. The proceeding in Florida, is called Revocation of Probate.
Form and Manner of Filing a Revocation of Probate:
First, Florida Statute Section 733.109 outlines the initial process for filing a will contest through revocation of probate.
(1) A proceeding to revoke the probate of a will shall be brought in the court having jurisdiction over the administration. Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.
(2) Pending the determination of any petition for revocation of probate, the personal representative shall proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to beneficiaries in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.
(3) Revocation of probate of a will shall not affect or impair the title to property purchased in good faith for value from the personal representative prior to an order of revocation.
(a) Petition and Contents. A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds on which revocation is demanded.
(b) Continued Administration. Pending the determination of any issue for revocation of probate, the personal representative shall proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to beneficiaries in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.
Do I Need to Include Factual Allegations in a Petition for Revocation of Probate?
Pursuant to the statute, the only thing required is that the person state the interest that the Petitioner has and the grounds for revocation. Typically, however, lawyers are as specific as possible with facts relating to the basis for challenging the estate plan. Many of the facts will be uncovered during discovery, so it is not a cause for concern if many of the circumstances surrounding the will are unknown.
A Petition for Revocation is like a Normal Civil Case:
Once the Petition is filed, it must be served on the personal representative and all interested parties. The service of process is conducted through Formal Notice because the proceedings are adversary. In Probate Litigation, the Florida Rules of Civil Procedure apply to adversary proceedings. This means that the case is treated and progresses like any other civil lawsuit.
Who Has the Burden of Proof in Will Contests?
In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation sought. Fla. Prob. R. 5.275 There is a presumption that the decedent is sane, so the burden of proving incompetency rests on the petitioner. Chapman v. Campbell, 119 So. 2d 61, 63 (Fla. 2d DCA 1960); Gardiner v. Goertner, 149 So. 186 (Fla. 1932)
Is there a time limit to filing a challenge to the validity of the will?
Yes. It is important to note that there is a short time period for challenging a will. You can read more about the statute of limitations on a will contest in our prior blog post, here.
Contact Us:
PersanteZuroweste brings actions to invalidate estate planning documents and defends claims that estate planning instruments are invalid. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.
About PersanteZuroweste:
PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.