Florida Probate Litigation Lawyer Blog
In estate planning, the preparation of a will is a crucial step toward ensuring that your assets are distributed according to your wishes upon your death. However, circumstances, relationships, and intent may change over time, which may lead to the need to update, revise, or completely revoke previously drafted testamentary documents. There are different ways to achieve the revocation of an existing will. In Florida, this process is filled with specific requirements that must be met for the revocation to be valid. A testator may revoke a will in three ways: (1) by writing, (2) by physical act, and (3) by operation of law.
Revocation by writing is controlled by Florida Statutes section 732.505. Pursuant to the statute, a will or codicil, wholly or in part, is revoked in two ways: (1) by a subsequent inconsistent will or codicil, even if the subsequent will or codicil does not expressly revoke all previous will or codicils, to the extent that the subsequent will or codicil is inconsistent with the prior will, or (2) “by a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.”
Revocation by physical act is controlled by Florida Statutes section 732.506. Pursuant to the statute, a will or codicil, with the exception of electronic wills, “is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying It with the intent, and for the purpose, of revocation.” For electronic wills or codicils, revocation by physical act is effectuated by “deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.” Note that, unlike revocation by writing, a will or codicil cannot be partially revoked by physical act.
Revocation by operation of law is controlled by Florida Statutes section 732.507. The statute provides, generally, the consequences and effect of subsequent marriage, birth, adoption, or dissolution of marriage on a previous will.
The courts may accept some acts that may not initially seem to satisfy the requirements set forth in section 732.505 and 732.506. For instance, in In re Estate of Dickson, the trial court admitted a will to probate notwithstanding the fact that the testator declared, by writing in the last page of his will, that the will was “null and void,” and signed his name under. Additionally, the testator encircled the notary’s seal and wrote the word “void” on it. On appeal, the court remanded the case after determining that these acts could constitute sufficient physical acts to revoke the will. As such, the court remanded the case for determination of the testator’s intent to revoke.
The attorneys at Chepenik Trushin LLP are ready, willing, and able to assist you with all your estate planning needs. Please contact us today at 301-981-8889 to discuss your estate planning needs.
