FL WILLS Flashcards
Statutory Formalities of Wills
- Age 18 or over
- Be in writing
- Testator must sign (any mark or initials or x)(can be done by someone else at testators direction and in the presence)
- Testator signs at the end of the will
- Two attesting witnesses (T can acknowledge previous signature in front of them)
- Witnesses must sign in presence of testator and in presence of each other
** no publication, i.e., witnesses do not need to know they are attesting will
** no particular order of signing
Testator Signs Before Existing Clause
The will is invalid. The testator’s signature must follow immediately after the final dispositive provision of the will
Clause Added After Execution
If will provision is added after the testator’s signature after the will is executed, the will is valid but the clause is not
Holographic Will
A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses. NOT recognized in FL
Presence Requirement
Scope of vision (minority) witnesses could see testator if they were to look
Conscious presence (majority) witnesses are conscious of where each other are and what each other are doing.
The FL Sup Ct has not ruled on this but lower courts seem to follow the scope of vision test. The minority test.
Foreign Domiciliary with Land in Florida
Primary administration in place of domicile but ancillary administration anywhere testator owned real property. Will in foreign language valid but English translation must be provided. Will recognized if complies with law of place of testator’s domicile at the time of execution. Exception, no unattended holographs.
Interested Witness
A gift to attesting witness does not invalidate will and gift is effective. However, bad practice.
Proof of Wills
To admit will to probate, a will must be proved. You need the oath of any attesting witness before the judge or court clerk. If witnesses can’t be located, or are incompetent, the court will accept the oath of the personal representative that they believe the writing to be the decedent’s las will
Self Proving Wills
For a will to be self proving, at the time its signed by the T and witnesses, a self proving affidavit reciting all elements of due execution is sworn to by the T and witnesses before notary.
Electronic Wills
Florida permits execution of a will to be carrier out online. Must state that the T intends to execute the will and that they understand its being executed pursuant to FL law. Remote witnesses may satisfy presence requirement by supervised video conference. Remote witnessing is not available to vulnerable adults. The electronic will can be self proving. (1) the self proving affidavit must be made a part of, attached to, or logically associated with the electronic will, and (2) the will must designate a qualified custodian to control the will until its offered for probate or revoked by the testator. A qualified custodia is a person who consistently uses a system for maintaining custody of electronic records and is a resident of FL.
How to Revoke a Will
By operation of law, by subsequent instrument, or by physical act.
Revocation by Physical Act
A will can be revoked by burning, tearing, cancelling, defacing, obliterating, or destroying it with the intent to revoke the will. An electronic will can be revoked by rendering it unreadable or deleting, cancelling, or obliterating it with the intent, and for the purpose of, revocation, as proved by clear and convincing evidence. An act of revocation on one copy revokes all copies. Act must touch some of the language to be sufficient cancellation.
Presumption as to Revocation
- If a will that was in Ts possession is found mutilated after Ts death, there is a rebuttable presumption that T did the act with the intent to revoke.
- If the will was last seen in Ts possession and control and is not found, rebuttable presumption that T destroyed w/ intent to revoke.
Revocation by Proxy
Florida permits revocation by the physical act by another person provided that the revocation is (1) at the testator’s direction, and in (2) the testator’s presence.
Lost or Destroyed Wills
If a will is lost or destroyed (and presumption of revocation overcome) the lost wills statute must be satisfied by proving - the testimony of two disinterested witnesses or by one disinterested witness and a photocopy of the will.
1. Due execution by the oath of one attesting witness and
2. Specific contents by the testimony of two disinterested witnesses or by one disinterested witness and a photocopy
Revocation by Written Instrrument
All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will. In FL, revocation can be by a writing that says “I revoke my will” as long as that writing is executed and attested with proper formalities. The usual way is to execute a new will, stating, “This is my last will and testament and I revoke all earlier wills and codicils” If the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions.
Effect of Revoking Codicil
Revocation of a will automatically extends to codicils. By contrast, revocation of codicil to a will does not automatically revoke the will. It is presumed the T intending their will as originally executed.
Revocation by Operation of Law (Divorces)
The divorce revokes all provisions in favor of the ex-spouse. Construe the will as if the ex-spouse is dead. Including other non probate transfers.
Mere separation has no effect on the spouses interest under the will UNLESS in conjunction with the separation, the two complete a property settlement agreement, the rights are deemed waived.
Effect of Remarriage
If a couple remarries, the will provisions remain revoked. However, other status in most non-probate transfers is revived (joint bank acts, POD/TOD, Life insurance, revocable trusts - maybe)
Interlineations and Changes After Execution
Recall that FL doe snot recognize either holographic wills or partial revocations by physical act. So interlineations are not effective unless the testator re-executes will or republishes will by codicil.
Dependent Relative Revocation
The doctrine applies when a T revokes their will under their mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, they would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force. DRR is applied only if it comes closer to what the T tried to do than would an intestate distribution. Can also apply when the T attempts to execute a second new will and it fails.
FL rule is that a earlier will is not revived when the subsequent will that originally revoked it is revoked itself.
Incorporation by Reference
A document may be incorporated by reference into a will, provided that
1. The writing is in existence at the time of execution
2. It is sufficiently described in the will to permit identification and
3. The will manifests an intent to incorporate the document.
An exception to the requirement that the document exist at execution permits a FL testator to refer in their will to a list specifying the distribution of items of tangible personal property, and to write or alter that list later. (Other than money or property used in trade or business). The writing must be 1. Signed by the T, 2. Must describe the items and the devisees 3. Map be prepared before or after the execution of the will and 4. May be altered by the T after its initial preparation.
Facts/Acts of Independent Significance
Acts with independent lifetime motive may impact on the will as well.
Lapsed Gifts and Anti-Lapse Statute
When a beneficiary named in th will or revocable trust dies before the T, the gift lapses unless saved by the state’s anti-lapse statute. An anti lapse statute operates to save the gift if the predeceasing beneficiary was in a specific degree of relationship to the T and left descendants who survived the T. FL statute applies when the predeceasing beneficiary is T’s grandparent or lineal descendant of T’s grandparent who leaves issue. The statute applies unless a contrary provision appears.
Class Gifts
If a will makes a gift to a class, only the class members who survive the T take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.
Meaning, this provision gives way to the anti lapse statute, and a descendant of the T that is part of the class and predeceases, his share will be saved rather than passing to the rest of the class.
Lapse in Residuary Gift
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devisees take the entire residuary estate in proportion to their interests in the residue.
Types of Gifts
Specific devise - gift of specific asset
General Legacy - Gift of specified pecuniary amount
Demonstrative legacy - gift of specified pecuniary amount with funding instructions
Residuary Bequest - rest, residue, and remainder of estate
Abatement
What if Ts estate is partially insolvent? Abatement is the process of reducing testamentary gifts in cases where the estate assets aren’t sufficient to pay all claims against the estate and satisfy all bequests and devises. Unless otherwise provided, gifts abate in the following order
1. Intestate property
2. Residuary estate
3. General legacies
4. Demonstrative legacies
5. Specific gifts
Ademption
If specifically bequeathed property is not in the Ts estate at death, the bequest is a deemed and the beneficiary takes nothing. Ademption applies only to specific devises and bequests. Ademption can be partial. Under FL law, Ademption does not apply in these cases
1. Testator incompetent
2. Certain proceeds to extent unpaid at Ts death
(A) any balance owing under a K that is still executors
(B) any amount of a condemnation award for the taking of the property by eminent domain unpaid
(C) any fire or casualty insurance proceeds unpaid
(D) property acquiring as a result of foreclosure
If insurance proceeds were paid while the T was still alive, the beneficiary under the specific devise does not take the insurance proceeds
Increase in Stock
A specific devisee takes the increase caused by stock split or stock dividend. A specific devisee of stock is entitled to any additional or other securities of the entity owned by the T because of action initiated by entity (merger, consolidation, reorg) excluding shares acquired by the exercise of purchase options
Bequests of Securities
The courts will construe a bequest of securities as a general legacy, if it is possible to do so, in order to avoid application of the Ademption doctrine.
Exoneration of Liens
In many states, the beneficiary of specifically devised property is entitled to have outstanding liens against the property paid out of the residuary estate. However, in FL, that is not allowed unless the will provides and intent is shown.
