A Will seems simple, but when executed, it can be a rocky road

How to comply with formal requirements of Will execution

Florida law places great emphasis on compliance with its statutes regarding execution of wills. This is to assure the authenticity of such an important document profoundly affecting many lives, and prevent fraud and imposition in its execution. The statutory provisions, which appear in Florida Statute §735.502, set out four main requirements for executing a will. Failure to comply with the formal requirements can invalidate the will and force the estate to pass through intestate succession. It is therefore important to comply with and understand these formal requirements.

Firstly, the will must be in writing. This means that the document can be handwritten, typed, or printed. Florida does not recognize oral wills (nuncupative wills) or wills without witnesses (holographic wills). Nuncupative wills are allowed in only few jurisdictions and typically require witnesses and some exigent circumstances such as a car accident or a heart attack. Contrarily, many states recognize holographic wills and have different requirements as to their validity.

Secondly, the testator or the testator’s proxy must sign the will at the end. The Florida Supreme Court has clarified in In re Williams’ Estate, 182 So. 2d 10 (Fla. 1965) that a testator may sign a will by making only an “X” mark. Further, the meaning of the phrase “at the end” is not as clear as it may appear. In In re Schiele’s Estate, 51 So. 2d 287 (Fla. 1951), the testator placed his signature in the attestation clause instead of the designated line in the actual will. The Florida Supreme Court held that while the attestation clause is not a part of the will, it may in general terms be referred to as a certificate of the will. Further, the court held that the phrase “at the end” typically means bellow all the disposing portions of the will. Because it is commonly recognized that the attestation clause comes at the end of the will, the Court held that the will was valid.

Thirdly, the testator or the testator’s proxy must sign in the presence of at least two witnesses. This requirement is also fulfilled if the testator acknowledges to at least two witnesses that the testator had signed the will earlier. Any person capable of understanding and being understood as to the witnesses’ duty to tell the truth qualifies as a witness to a will. Fla. Stat. §§ 90.601, 90.603, 732.504. Pursuant to Florida Statute §732.504(2), interested persons, including beneficiaries under the will, may act as witnesses to the will. However, utilizing this option carries several risks, such as that other beneficiaries under the will may challenge the will on the grounds that the interested witness unduly influenced the testator. Fla. Stat. §732.5165. In addition, there is no requirement that the witnesses sign at a specified place or with any particular intent. In In re Charry’s Estate, 359 So. 2d 544 (Fla. Dist. Ct. App. 1978), two witnesses signed only the self-proving clause of a will but not a separate attestation clause which is the customary place for witnesses to sign. The court held they were effective witnesses to the will even though they signed in the wrong place.

Fourthly, the witnesses must sign in the presence of the testator and in the presence of each other. In other words, the witnesses must actually witness the testator or the testator’s proxy signing the will (or acknowledgment of prior signing), and sign the will attesting to that fact. Because Florida courts have not clearly defined the presence requirement, it is important to take extra precaution. For example, in Price v. Abate, 9 So. 3d 37 (Fla. Dist. Ct. App. 2009), the testator signed the will in front of one witness, that witness signed the will, and consequently the first witness called the second witness through intercom who then arrived and signed the will. The second witness did not see either the testator or the first witness sign the will but was in the physical proximity the whole time. The court held that the mere fact that the witnesses were in the vicinity of one another was insufficient to satisfy the presence requirement. Accordingly, the court declared the will invalid for failure to comply with formal requirements.

Adherence to the Florida statute requirements is crucial when executing a will. If you want to ensure that your will is validly executed in accord with the statutory requirements, do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your probate administration and probate litigation needs. Bart Chepenik, 305-613-3548, Brad Trushin, 305-321-4946. Both are accessible seven days a week to help with you legal needs.