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07/05/12 It's The Law: Oral Wills Are Invalid --- So Are Oral Directions

Question:

My dad's Will appoints me as personal representative. The only direction for distribution of his assets is a direction that I follow distribution in accordance with his last discussion with me about distribution. I am sure that Will cause trouble with my brothers and sisters. Is it valid?

Answer:

Florida statutes govern what will be accepted in Florida as a Last Will and Testament. A Florida Will must be in writing and executed as follows:

  1. 1.The Testator must sign the Will at the end or by another person at the testator's direction.
  2. 2.The Will must have two (2) witness signatures who either were present when the Will was signed or the testator acknowledges signing the Will and both witnesses must be present at the same time. The witnesses must sign the Will in the presence of the testator and each other.

Any Will executed outside of Florida is valid is if it was valid at time of execution under laws of the state or country where it was signed, except for holographic and Nuncupative Wills. A Holographic Will is handwritten by the testator. An exception for validity is made if the handwritten Will is properly executed with two (2) witnesses. A Nuncupative Will is an oral Will which is declared by the testator as his Last Will and Testament. Under no circumstances is an oral Will valid in Florida.

Some do it yourself Will writers try to maximize flexibility by writing a Will similar to your father's. Some plan on telling their appointed personal representative how they want assets distributed and changing that distribution from time to time without the necessity or expense of revising their Will. Others plan on leaving it to the discretion of their appointed personal representative. The recent case of Glenn v. Roberts addressed this type of direction in a Will.

In the Roberts case, the decedent's Last Will and Testament included the following provisions:

THIRD

I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature, and wheresoever the same may be situate unto my friend, TERRY GLENN, having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire he benefit

The Will also contained the following last and final Article:

FIFTH

In the preparation of this, my Last Will and Testament, I have carefully and thoughtfully considered each member of my family and all of my friends, and have not unintentionally omitted any of them, as it is my desire, and I so direct, that only those beneficiaries named herein, share as beneficiary of my probate estate. French died on July 7, 2010.

Glenn, as personal representative, started probate. Roberts filed a petition to set aside the Will, claiming she was the decedent's only grandchild and a rightful heir to the decedent's estate. She argued that the first sentence of the third article was ineffective because it included an oral instruction and did not meet the statutory requirement that it will be in writing. Roberts argued that rendered the Will invalid and that the decedent's property should be distributed in accordance with Florida's law of intestate succession (i.e., as if the decedent did not have a Will). The trial judge agreed that the Will was invalid. The appellate court reversed, but not necessarily on the ground you might think.

The appellate court discussed an earlier appellate decision (Corbin) in which the decedent's Will left everything to an individual "to dispose of as she has been instructed to do by me." In that case, the appellate court ruled that the Will was equivalent to an oral will, invalid under Florida law and the estate had to be probated as if the decedent did not have a Will.

The appellate court in Roberts distinguished the Corbin case because of the language used in Roberts. In Roberts, the decedent's Will left assets to Glenn "having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire he benefit." The court ruled such language was not binding but merely an expression of the decedent's hopes and wishes. The Will was not the equivalent of an oral Will and the trial judge was reversed. The matter was returned to probate court to complete probate of the Will.

Sadly for the decedent in Roberts, the court's ruling made it clear that the personal representative had no legal obligation to follow the decedent's wishes or discussions. Glenn could keep all of the decedent's assets or distribute them as he deemed appropriate. Even though the Will was valid, it might not reach the decedent's intended destination.

The Roberts case underscores the importance of good legal advice in estate planning. It also emphasizes the importance of both form and substance in Wills and Trusts. If you truly want to see that your dad's wishes are honored, share this article with him and suggest that he retain an attorney to draft his Will. If he changes his mind as to distribution before he dies, the Will can always be revised. Leaving his estate to you with direction that you honor his oral instruction as to distribution is the legal equivalent of having no Will at all.

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