Florida's Requirements for a Legal and Valid Will
Florida, like most states, affords most adults the right to make informed decisions about how their state should be distributed after their death. However, a will must still meet certain requirements to be considered valid. For example:
- The person writing the will, known as the testator, must be at least 18 years old or a legally emancipated minor.
- The testator should be of sound mind, meaning that they know they are writing a will, are capable of understanding their relationship to their heirs, and can comprehend their will's effects with respect to their property.
- The will cannot be a product of fraud, duress, mistake, or undue influence.
Under Florida law, a will must:
- Be in writing;
- Have the testator's signature at the end; and
- Contain the signature of two attesting witnesses.
While a Florida court may quickly discard an unsigned or unattested will, the judge may be reluctant to dismiss a document that was signed by the testator in the presence of two witnesses, especially if one of the witnesses is able and willing to testify to its authenticity.
However, a will with the proper number of signatures in the right places is not necessarily an authentic will.
Establishing That a Signed Will Is Inauthentic
Under Florida law, a will is void if it is procured by fraud, a common form of which is a forged signature. If you believe that a loved one's will is inauthentic, you may have the grounds to file a will contest.
Since a will contest is an adversarial proceeding, you will have the opportunity to gather and present evidence supporting your belief. Typically, when somebody believes that a will has been forged, they will consult a handwriting expert to evaluate the signature. If the handwriting expert believes the signature is not genuine, the court may accept their opinion as sufficient evidence to uphold the contest.
However, the handwriting expert's opinion is not unassailable. If another heir wishes to have the will executed, they may attempt to persuade the court of the document's authenticity by summoning any persons who claim to have witnessed the will being signed. Should these persons provide compelling and non-contradictory testimony, the judge may allow the will to be fulfilled even if the handwriting expert believes that it is a forgery.
The Penalties for Forging a Will in Florida
Forgery can have consequences beyond the invalidation of a will.
Florida, for instance, considers forgery a serious crime. Any person who falsifies a document with the intent to injure or defraud another person could be charged with and convicted of a third-degree felony, punishable by up to 5 years in prison and a fine of up to $5,000.
Additionally, any person who lies to the court under oath is guilty of perjury, another third-degree felony punishable by up to five years in prison and a fine of up to $5,000.
While the court may refer the person who forged the will for criminal prosecution, a successful conviction does not guarantee that the plaintiff—or the estate—will be able to recover the money they spent litigating their will contest. Fortunately, an experienced Florida probate litigation attorney could help you file an additional claim for damages if they can provide compelling evidence that the personal representative, or another beneficiary, falsified legal documents for personal gain.
Contact an Attorney Today
Will contests can be time-consuming and emotionally exhausting, especially if the executor or another heir tries to misrepresent the deceased person's final wishes. An experienced Florida probate litigation attorney could help you not only gather the evidence needed to demonstrate forgery, but push back against the defendant's efforts to have the will executed.
Please send DeLoach Hofstra & Cavonis, PA, a message online or call us at 727-777-6842 to schedule your initial consultation and begin exploring your options for rapid legal relief.