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It's The Law: Wills Must Meet Statutory Requirements

Q: One of my friends told me a story about someone’s last will and testament that was rejected by a court because it was not properly executed. What are the requirements for a valid will in Florida?

A: Chapter 732 of Florida Statutes sets out a number of requirements for creation of a valid Florida will. The first requirement is that the person making the will be of sound mind and be either 18 or more years of age or an emancipated minor. A minor maybe emancipated by marriage, court order or common law emancipation. Common law emancipation is a voluntary breaking of a child’s subjection to the parent and can be expressed or implied from the parent’s conduct and the surrounding circumstances.

Every will must be in writing. The testator (the person making the will) must sign the will at the end of the will or the testator’s name must be signed at the end of the will by some other person in the testator’s presence and at the direction of the testator.

The testator’s signature can be by any manor deemed appropriate by the testator, including making of a mark. However, signing less than an actual name may lead to later question as to whether the document was actually signed or if the signing was complete.

There has also been much litigation about location of the signing. Questions can be raised as to whether signature was truly at the “end” of a will. Courts have strained to find the signature proper, but often after lengthy and expensive litigation.

The testator must sign or acknowledge previously signing, or acknowledge that another person signed the testator’s name, in the presence of at least 2 attesting witnesses. Florida allows beneficiaries named in the will to sign as witnesses The witnesses must sign the will in the presence of the testator and in the presence of each other.

Florida courts seemingly want to find that signing witnesses signed in presence of the testator and of each other, including where signing in the same hospital room or adjacent corridor. Where a witness testifies that either the testator or the other witness was not present when the will was signed, a court will invalidate the will.

In some states, a will is valid if it is handwritten by the testator. In Florida, a handwritten will is only valid if it is executed like any other will. That means even a handwritten will must have 2 attesting witnesses signing in presence of the testator and in the presents of each other.

In a limited number of states, an oral will can be valid if pronounced to at least 2 witnesses. These are known as nuncupative wills and can only deal with distribution of personal property. Nuncupative wills are not valid in Florida.

Florida does have a savings provisions in its statutes that makes any will, other than a holographic or nuncupative will, valid in Florida if the testator was a nonresident of Florida at time the will was executed and it was valid under the laws of the state or country where the will was executed. The statute also validates military testamentary instruments if executed in accordance with Federal law applicable to them.

Military testamentary instruments are only valid under Federal law if 1) executed by the testator, or if the testator is unable to execute, executed in the presence of by the direction of and on behalf of the testator; 2) the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney; 3)the instrument is executed in the presence of at least 2 disinterested witnesses in addition to the presiding attorney, each of whom attests to witnessing the testator’s execution.

To open probate, one of the attesting witnesses must sign an oath confirming that the will is the document he or she witnessed. If no witness can be found, there are procedures for admitting the will to probate, but they are more cumbersome and expensive. These problems can be avoided by making the will self-proved.

A will is made self-proved by execution and acknowledgment before a notary public in accordance with specific statutory requirements. The statute suggest a form and content for signatures and notarization and suggests that execution of the will be “substantially” in the form set forth in the statute. If the form is not exactly followed, a testator risks a court later finding the will was not self-proved.

Estate planning is one area where some people look for forms or otherwise try to avoid the expense of an attorney by making their own documents. This risks creation of invalid instruments. It also risks exposing the assets to unanticipated tax claim and distribution that might be other than as intended. End result may be penny wise but pound foolish.

In the estate planning field, you are well advised to retain an experienced attorney.

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