Ensuring the Validity of Your Last Will and Testament

There are a number of reasons why people choose to execute a Last Will and Testament.  Some individuals create a will to ensure that their loved ones are provided for upon their passing.  On the other hand, other people create a will to ensure that certain family members are specifically excluded from the distribution of their estate.  Often times, however, life circumstances and/or the desires of the testator change between the execution of a will and the testator’s passing.  In such instances, a modification or revocation of the previously executed will is necessary to reflect the changed testamentary intent.

Many people assume that they can modify or revoke their will simply by drawing a line through existing provisions, handwriting in new provisions, and initialing next to the changes.  While this may be considered a valid modification in other states, this type of alteration is not valid under Florida law.  Florida law requires strict adherence to what are known as “will formalities” in both the execution and the modification of a will.  Any deviation from these strict formalities may result in a will being deemed invalid by a court, further resulting in the will not being admitted to probate and thereby frustrating the testamentary intent of the testator.

At the outset, to be valid under Florida law, a will must be executed in accordance with Section 732.502 of the Florida Statutes.  This section requires that a will be signed by the testator in the presence of at least two attesting witnesses, who must also sign the will in the presence of the testator and each other.  Likewise, for any subsequent modification of an executed will to be valid, the new will and/or amendments to the existing will must be executed with the same formalities explained above.  Under Florida law, a will may be modified in two ways: by codicil and by re-execution.  Florida Statutes, Section 732.5105, allows for republication of a will by codicil (essentially, an amendment to the will), stating that “the execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.”  It bears repeating, though, that the execution of a codicil to a will also requires strict adherence to the will formalities.  Any deviation from the strict formalities required by Florida law during the execution of the codicil may leave the original will intact, nullifying the intent of the codicil.

In some circumstances, however, such as when the testator desires to make substantial modifications to an existing will, a complete revocation of the existing will and the execution of a new will with the desired modifications is preferable to the execution of a codicil.  Under Florida law, an existing will may be revoked two ways: (1) by writing and (2) by physical act.  Fla. Stat. § 732.505 allows for the revocation of a will, or a codicil thereto, by writing.  Under this section, any will or codicil properly executed subsequent to the one the testator seeks to revoke is deemed to have revoked the first will to the extent there are inconsistencies between the two properly executed documents.  In other words, if a second will or codicil is validly executed, but does not expressly revoke the first will, the first will is deemed revoked as to those provisions that are inconsistent with provisions in the second will.  Further, Section 732.505 allows for the express revocation of a will by writing, whereby the testator may revoke an existing will, or codicils thereto, by properly executing a new will or codicil that explicitly states that the prior will is revoked.

Moreover, a will may be revoked by physical act in accordance with Section 732.506 of the Florida Statutes.  Under this section, the testator may revoke a will by “burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.”  Once a will is revoked as outlined above, the testator may execute a new will, in accordance with the will formalities, containing all modifications that he or she desires to make.

If you or someone you know is interested in executing or modifying their will, please do not hesitate to contact the experienced estate planning attorneys at Chepenik Trushin LLP who are ready, willing, and able to take care of all of your estate planning needs.