Last will and testament can't be challenged until probate commences

Question: My father's last will and testament, signed in 2002, split everything equally between my sister and me. This is what Dad always told us he wanted. Since then, he has developed frontal lobe dementia and is living with my sister. My aunt recently told me my dad just signed a new will, and she heard my sister boasting she is getting everything under the new will and I am cut out. I think she's taken advantage of Dad. Can I do something to challenge the will now, before he passes on? He's 84.

Answer: I am so sorry you are in this situation. I understand your concern.

You might ultimately have grounds to challenge his last will and testament, perhaps on the basis of undue influence or lack of capacity. However, this can't be done ahead of time. You will have to wait until your father (the testator) passes away. Once his will is submitted to the probate court, you will have a limited period of time to challenge it. Until then, you have no legal recourse for demonstrating that the will is invalid. When the time comes, you will need to retain a probate litigation lawyer to handle the case.

For now, my suggestion is that you document everything — phone calls, paperwork, etc. — to fortify any future case. Also, because it sounds like your father may be the victim of elder financial abuse, I suggest that you contact the Florida Elder Abuse hotline, 800-96-ABUSE (800-962-2873).You could also consider filing a petition for guardianship. If a guardian is appointed, he/she will be able to monitor the situation and gather any evidence that your father has been the subject of undue influence or fraud, evidence that will be valuable once the probate is under way.

Joseph Karp, a member of the Florida and New York Bars, is a Nationally and Florida Bar Certified Elder Law Attorney and founder of The Karp Law Firm, located in Palm Beach and St. Lucie counties. The firm assists clients with wills, trusts, Medicaid and VA benefits planning, asset preservation, probate/trust administration and estate litigation.

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Last will and testament can't be challenged until probate commences