When a family member suspects that a will or trust was procured through undue influence, fraud, or while the maker lacked mental capacity, the natural instinct is to challenge the document. But in Florida, the path you take depends entirely on what you’re contesting—a will or a trust—because the two follow substantially different legal frameworks with different deadlines, burdens of proof, and available remedies.
Understanding these differences is critical before you take any action, because the wrong strategic choice or a missed deadline can permanently waive your rights.
The Same Grounds, Different Statutes
The good news is that the substantive grounds for invalidation are essentially identical for both wills and trusts. Under §732.5165, a will is void if its execution “is procured by fraud, duress, mistake, or undue influence.” Under §736.0406, a trust (or any amendment or restatement) is likewise void if procured by the same grounds. Both also share common-law capacity requirements—the maker must have been “of sound mind” at the time of execution.
But that’s where the similarities end. The procedures, timelines, and evidentiary rules diverge significantly—and those differences can make or break your case.
Deadlines: Three Months vs. Years
This is the single most important practical difference between the two types of contests.
Will contests operate under extremely tight deadlines. Under §733.212(3), once the personal representative serves you with a formal Notice of Administration, you have just three months to file objections—or those objections are “forever barred.” This three-month window is strictly enforced and can only be extended based on estoppel if the personal representative made misstatements about filing deadlines. All objections must also be filed before the earlier of the personal representative’s final discharge or one year after service of the notice.
Trust contests operate under a fundamentally different timeline. Under §736.0207(2), a revocable trust cannot be contested until it “becomes irrevocable by its terms or by the settlor’s death.” After that, Florida law does not impose a specific limitation period for trust validity challenges the way probate law does. Instead, trust contests appear to be governed by general limitation periods under §95.11—including a four-year period for actions founded on fraud—and by the comprehensive limitation framework in §736.1008, which establishes periods ranging from six months to forty years depending on the beneficiary’s knowledge and the nature of the claim.
What this means in practice: if you’re considering contesting a will, you may have as little as three months to investigate, retain counsel, and file. For a trust contest, you generally have more time—but waiting too long can still be fatal to your claim.
Burden of Proof: Who Has to Prove What?
The burden of proof rules are markedly different—and this difference significantly affects litigation strategy.
In a will contest, §733.107 establishes a burden-shifting mechanism. First, the proponent of the will (usually the personal representative) must establish prima facie that the will was properly executed and attested. Once that threshold is met, the burden shifts to the contestant to prove the grounds for invalidity. This initial burden on the proponent creates an opportunity for contestants to challenge the foundational validity of the document before having to present their own case.
In a trust contest, §736.0207(1) places the entire burden on the contestant from start to finish: “in an action to contest the validity or revocation of all or part of a trust, the contestant has the burden of establishing the grounds for invalidity.” There is no initial burden on the trust proponent. This makes trust contests procedurally harder because the challenger carries the full evidentiary load throughout the proceeding.
The Undue Influence Presumption: A Crucial Advantage in Will Contests
Perhaps the most significant strategic difference involves undue influence claims. For will contests, §733.107(2) codifies a burden-shifting presumption that “implements public policy against abuse of fiduciary or confidential relationships.”
Under the framework established by the Florida Supreme Court in In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971), a presumption of undue influence arises when a contestant can show that (1) a substantial beneficiary (2) occupied a confidential relationship with the testator and (3) actively procured the contested will. Once this presumption arises, the burden shifts to the beneficiary to provide a reasonable explanation for their active role. If the beneficiary meets that burden, the presumption vanishes and the case is decided on the greater weight of the evidence.
The Fourth District reinforced the power of this presumption in Leitner v. Leitner, 391 So.3d 1023 (Fla. 4th DCA 2024), holding that “once the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding.” This means the case must go to trial—a significant procedural advantage for contestants.
Trust contests follow similar undue influence principles through common law, but lack the specific statutory burden-shifting provisions found in §733.107. This means trust contestants cannot rely on the same codified presumption framework and must build their undue influence case entirely through evidence, without the benefit of a statutory burden shift.
Available Remedies: Wills Are Limited, Trusts Are Broader
The remedies available after a successful contest differ substantially between the two proceedings.
Will contest remedies are relatively straightforward. A successful challenge typically voids all or part of the will under §732.5165, with the estate then distributed either under a prior valid will or through intestate succession. Courts have limited flexibility beyond determining validity. Attorney fees may be awarded under §733.106 “as in chancery actions.”
Trust contest remedies are significantly broader. Beyond voiding the trust or specific provisions, courts can impose constructive trusts—as the Fourth District confirmed in Revah v. Revah, 424 So.3d 971 (Fla. 4th DCA 2025), which recognized constructive trust remedies for unjust enrichment resulting from fraud, undue influence, or breaches of fiduciary duty. Courts may also order surcharge (requiring trustees to pay damages from personal funds), trustee removal, trust reformation, and trust modification. The Fourth District clarified in Miller v. Moore, 391 So.3d 938 (Fla. 4th DCA 2024) that disgorgement and surcharge requests constitute personal judgments requiring personal service on individual trustees.
Attorney fees in trust proceedings are governed by §736.1004, which similarly provides for taxable costs “as in chancery actions, including attorney fees.”
No-Contest Clauses: Unenforceable in Florida for Both
Some wills and trusts include “in terrorem” or no-contest clauses that purport to penalize beneficiaries who challenge the document—typically by disinheriting them if their challenge fails. In many states, these clauses have teeth.
Not in Florida. Section 732.517 renders no-contest clauses in wills completely unenforceable, providing 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.” Section 736.1108 provides identical protection for trusts, declaring that “a provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.”
This is a significant protection for Florida beneficiaries. You cannot be punished for bringing a good-faith challenge to a will or trust, regardless of what the document says.
Side-by-Side Comparison
| Factor | Will Contest | Trust Contest |
| Governing Law | Chapter 732 | Chapter 736 |
| Grounds | Fraud, duress, mistake, undue influence, lack of capacity | Same grounds |
| Deadline | 3 months from Notice of Administration | No specific statutory deadline; general limitations apply |
| Burden of Proof | Shifts: proponent first, then contestant | Contestant bears full burden throughout |
| Undue Influence Presumption | Statutory burden-shifting under §733.107 | Common law only; no statutory framework |
| Remedies | Void will; prior will or intestacy | Void trust, constructive trust, surcharge, removal, reformation |
| No-Contest Clauses | Unenforceable (§732.517) | Unenforceable (§736.1108) |
| Attorney Fees | §733.106 (as in chancery) | §736.1004 (as in chancery) |
When Both a Will and Trust Are Challenged Simultaneously
In many estates, the decedent had both a will and a revocable living trust. When undue influence or fraud is suspected, both documents may need to be challenged—and the procedural differences between the two proceedings require careful coordination.
The will contest must be filed within the three-month probate deadline, while the trust challenge operates on a separate timeline. The undue influence presumption may be available in the will contest but not in the trust challenge. Discovery obtained in one proceeding may be useful in the other, but the cases may be pending in different procedural postures. This kind of coordinated litigation requires experienced counsel who understands both frameworks and can develop a unified strategy across both proceedings.
Protect Your Inheritance Rights
If you believe a loved one’s will or trust was procured through undue influence, fraud, or while they lacked capacity, time is critical—especially for will contests where the three-month clock starts ticking the moment you receive the Notice of Administration.
Zoecklein Law PA represents beneficiaries and interested persons throughout the entire state of Florida in will contests, trust litigation, and probate disputes. We understand the strategic differences between these proceedings and how to navigate them effectively. Contact us today for a consultation.
