How does a Will get revoked in Florida? | Florida Probate LitigationPosted September 4, 2016 in Florida Probate Litigation
How does a Will get revoked in Florida?
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How does a Will get revoked?
Generally speaking, there are two ways that a testator (the person creating the will) can revoke a will--(1) by a written document and (2) By a physical act.
(1) Revocation through written document:
A will or codicial can be revoked in writing:
§ 732.505, Fla. Stat.
One of the most common ways that a Last Will and Testament gets revoked in Florida, is through a written document. Usually the execution of a new will specifically revokes the all prior wills. The will may provide something like the following:
"I, [name of testator], revoke all prior wills and codicils thereto, and declare this to be my Last Will and Testament."
While less common, a testator can revoke any will or codicil by any written document, so long as the written document complies with same formalities as a will. The basic formalities of a will are:
Statutory Formalities (Fla. Stat. § 732.502):
- The will must be in writing.
- The will must be signed by the testator (or at the testator’s direction) in the presence of two witnesses,
- The witnesses must sign the will in the presence of each other and the testator.
(1) Revocation by Physical Act:
Another way that a testator can revoke a will is through some physical act. This can include burning, tearing, canceling, defacing, obliterating, or destroying the document with the intent, and for the purpose, of revocation. § 732.506, Fla. Stat.
It is important to note that the testator must have intended that the act revoke the will. Accidentally burning the house down with the will inside, is not going to cut it. In other words, the act and intention to revoke must be a joint operation. In re Estate of Tolin, 622 So. 2d 988, 989 (Fla. 1993). The destruction of a copy of the original will is also insufficient.
There are so many factual examples that you can imagine. In one case, the issue was whether the Decedent had revoked the will when it was flushed down a toilet by family members when he was in the house, but not in the bathroom to see the flushed will (spoiler alert, that did not constitute a valid revocation because he was not "present" to witness the destruction). In re Bancker's Estate, 232 So. 2d 431, 431 (Fla. 4th DCA 1970). Burning the will by an individual while the testator was in a different city was also insufficient. In re Gross' Estate, 144 So. 2d 861, 861 (Fla. 3d DCA 1962)
But, cutting out the signature and witness signatures on a will is a sufficient revocation. See In re Wider's Estate, 62 So. 2d 422, 423 (Fla. 1952).
Additionally, just as a testator must have capacity to execute a will, a testator must have mental capacity to revoke a will for the revocation to be valid. In re Niernsee's Estate, 2 So. 2d 737, 739 (Fla. 1941).
Because there are so many factual and legal nuances that can render an attempted revocation of a will invalid, these issues often become an issue in probate litigation.
PersanteZuroweste brings actions to invalidate estate planning documents and defends claims that estate planning instruments are invalid. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.
PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.