What Happens when one Executes a Will in Two Different Countries, with Different Beneficiaries?

The United States is famously known for its influx of immigrants moving here to build their lives, to retire, and for various other reasons. But specifically, tropical and sunny Florida is a very popular place for those coming from other countries. A booming 129,525 people moved to Florida from other countries just this past year! It is very common for people to own property in both their native home, as well as here in the United States.

As people build their lives, it is very important to plan what will happen after death to property both in the U.S. and abroad. This especially became important for Elena Isleno, a citizen of Argentina. Ms. Isleno owned property both in Argentina and in Florida. In order to protect her assets and decide what should be done with her properties, Ms. Isleno executed a will in New York; certain property went to friends and family in Argentina, while others to friends and family in the United States.

This New York will was duly executed with all of the required formalities (attesting witnesses and signatures) and therefore, presumably valid. So all seems ready and good to go, correct? Except that only four months later, Ms. Isleno executed a second will in Argentina! If this will was identical to the first will, there should not have been any issues. However, this will, let’s call it the “second will,” instead left all of Ms. Isleno’s property to her friends and family in Argentina. For the second will, Ms. Isleno orally told a notary what her wishes were for her property (i.e. to be left to her friends and family in Argentina), who then typed it up, and confirmed with Ms. Isleno it was correct. Ms. Isleno confirmed its contents. The notary stamped and signed the will. However, for reasons we may never know, neither Ms. Isleno nor the witnesses signed the document.

The second will was admitted to probate in Argentina, which prompted the New York beneficiaries to file a petition to administer the New York will in Florida. With no surprise, the friends and family in Argentina who were named in the second will objected and sought to admit the second will instead.

Under Florida law, a foreign will is typically admitted to probate if it was validly executed under the laws of the foreign country. However, there are two types of wills that are never valid under Florida law: holographic (handwritten) wills and nuncupative wills. A nuncupative will is one that was done orally. The Court here treated Ms. Isleno’s second will as a nuncupative will, on the basis that she never signed it. Based on this finding, the claims of the beneficiaries in Argentina failed and the first will was accordingly admitted to probate, and will control the disposition of Ms. Isleno’s property.

As illustrated, it is very important to plan one’s estate. If you or someone you know has property both here and abroad, please do not hesitate to contact us regarding your estate planning needs. The experienced attorneys at Chepenik Trushin LLP are ready, willing, and able to provide advice and assistance.