PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Contesting The Validity Of The Will Prior To Its Admission To Probate

You can contest the validity of a will prior to its admission to probate if the testator is deceased [§732.518] and: (a) a caveat had been filed by an interested person other than a creditor [§731.110(3); Fla.Prob.R.5.260(f)], and/or (b) formal notice of a petition for administration is served on interested persons [§733.2123]. See Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3rd DCA 2012); Platt v. Osteen, 103 So. 3d 1010 (Fla. 5th DCA 2012); Powell v. Eberhardt (in Re Estate of Hartman), 836 So. 2d 1038 (Fla. 2nd DCA 2002).

Sec. 731.110, F.S. reads in relevant part: “(1) Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court…. (3) If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules.”

Fla. Prob. R. 5.260(f) reads: “After the filing of a caveat by an interested person other than a creditor, the court must not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator’s designated agent. A caveator is not required to be served with formal notice of its own petition for administration.”

Sec. 733.2123, F.S. reads: “A petitioner may serve formal notice of the petition for administration on interested persons. A person who is served with such notice before the issuance of letters or who has waived notice may not challenge the validity of the will, testacy of the decedent, venue, or jurisdiction of the court, except in the proceedings before issuance of letters.” (eff. July 1, 2015)

PRACTICE POINTER: Contesting the validity of a will prior to its admission to probate may give the petitioner a strategic advantage in the litigation because the designated personal representative must petition the court for the appointment of either a curator or a administrator ad litem and cannot use probate assets to defend against the will contest without court authorization.

A will contest is distinguishable from a petition to construe a will because a will may not be construed by the Court until it has been admitted to probate. See §733.213, F.S.