Florida Last Will and Testament

There are several types of wills, only some of which can be recognized as a valid Florida last will and testament.

  • Attested wills are written and signed by the testator (or by a proxy) in the presence of two witnesses.  They are recognized in Florida and are the most common type of Florida last will and testament.
  • Military wills are executed in accordance with Federal law by an eligible person.  They contain many of the same formalities as attested wills and are valid in Florida.
  • Holographic wills are handwritten and signed only by the testator, without the signatures of witnesses.  They are not recognized in Florida.  But a handwritten will that is properly signed and witnessed can be valid as an attested will and is not considered holographic.
  • Oral wills are not in writing, but spoken to another person.  They are invalid.
  • Out-of-state wills can be valid in Florida, depending on the circumstances.  If the will is in writing and valid in the jurisdiction where it was executed, it is valid in Florida even if it does not meet the Florida requirements.

If the document falls into one of these categories, the estate will be probated as a testate estate.  If not, the decedent will be treated as having died without a will and the estate will be probated as an intestate estate.

Requirements for Valid Attested Wills

Attested wills are the most common type of Florida last will and testament.  An attested will meets the following requirements:

  • It must be in writing. Oral wills are invalid.
  • It must be signed. The testator must sign at the end, or a proxy may sign for the testator at his direction and in his presence.   It is common practice for a testator to sign or initial each page, but this is not a legal requirement.   Some probate courts have found validity even though the testator signed in the wrong place.
  • It must be attested to by two witnesses.  The witnesses can be any persons competent to be witnesses.   There is no age requirement.  To be competent a witness must, at the time of execution, have (1) the ability to observe the testator sign the will, and (2) and the ability to understand the nature of what the testator is doing.
  • The testator must sign the will in the presence of the two attesting witnesses or acknowledge that he has previously signed the will (or that a proxy has signed the will for him). The witnesses need not read the will, but they must sign it at the time of execution, after the testator has signed, and in the presence of the testator and each other.

Testamentary Intent and Testamentary Capacity

For a will to be valid, the testator must have testamentary intent and testamentary capacity at the time it is executed.  Testamentary intent means that the person who created the document intended for it to serve as his will.   Titling the document as a will is evidence of testamentary intent, but is not conclusive.

Testamentary capacity has two parts.  First, the person must be of the age of majority.  Age of majority is defined as being 18 years old or older, or being an emancipated minor.   Second, the person must be of sound mind.   “Sound mind” is defined as the ability to understand the extent of one’s property, the natural objects of one’s bounty, the nature of the disposition, and these matters in relation to each other.

Florida Will Contests

A Florida last will and testament can be challenged on several grounds, including defects in execution, forgery, fraud, duress, mistake, lack of testamentary capacity or intent, revocation, and undue influence.   The statute of limitations for will contests is three months from the date of service of a copy of the notice of administration on the objecting person.

In a will contest, the burden is on the one who is presenting the will to establish its validity.  If it can be shown that the will appears to be valid, the party contesting the will then has the burden of showing that it should not be admitted to probate. But if the will is contested on the grounds of lack of testamentary capacity, undue influence, or fraud, the party contesting the will need only show facts that establish a presumption of the existence of the alleged ground in order to return the burden of proof to the proponent.

Probate Note: Will contests often arise under suspicious circumstances.  An elderly widow disinherits her children and leaves everything to her new beau.  A feeble-minded grandfather leaves everything to his caretaker.  Situations like these set the stage for a dispute.

Often there are valid reasons for the testator’s decision.  Perhaps the elderly widow had a good reason for disinheriting the children.  Perhaps the grandfather was not unduly influenced by the caretaker.  In this type of situation, the assistance of a skilled estate planning attorney are critical.  A good attorney will help document the basis for the decisions and provide a solid defense in the event of a later challenge.