Enforceability of Will Contest Clauses in Florida

Mon 14th Aug, 2023 Estate Planning

A will contest clause, or in terrorem clause, is a provision in a will that purports to penalize a beneficiary for contesting the will. The most common type of will contest clause states that if a beneficiary contests the will and loses, they will be disinherited.

Will contest clauses in Florida are unenforceable. Florida law specifically states that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Fla. Stat. § 732.517.

There are several reasons why Florida law prohibits will contest clauses. First, will contest clauses can discourage beneficiaries from exercising their legal right to challenge a will that they believe is invalid. This can lead to wills being admitted to probate that are not in the best interests of the decedent’s heirs.

Second, will contest clauses can be unfair to beneficiaries who have legitimate grounds to challenge a will. For example, a beneficiary may have a valid claim that the will was forged or that the decedent was not mentally competent when they made the will. A will contest clause would prevent these beneficiaries from challenging the will, even if they have a strong case.

Third, will contest clauses can be difficult to enforce. If a beneficiary contests a will and loses, the court will have to determine whether the beneficiary’s challenge was frivolous. This can be a difficult and time-consuming process.

For these reasons, will contest clauses in Florida are unenforceable.

Nevertheless, will contest clauses are occasionally still included in Florida wills or trusts as a tactic to discourage conflict among family members. If you are considering including a will contest clause in your will, you should carefully weigh the pros and cons. Will contest clauses can be tempting to use as a way to discourage beneficiaries from challenging the will. However, if challenged, a Florida court will likely conclude that the provision is unenforceable.

If you have any questions about will contest clauses in Florida, contact the attorneys at Purcell, Flanagan, Hay & Greene, P.A.