Sometimes life events occur that require a change in Estate planning. In Florida will contests and Probate litigation can often turn on the strange set of circumstances surrounding whether or not a Last Will and Testament was properly revoked.
Fortunately, Florida Statutes offer some guidance:
732.505. Revocation by writing
A will or codicil, or any part of either, is revoked:
(1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency.
(2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.
732.506. Revocation by act
A will or codicil, other than an electronic will, 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. An electronic will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, 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.
So Florida law explicitly provides that a Last Will and Testament can be revoked by act or by subsequent writing. If you are considering revocation by act, think about who has copies of the Last Will and Testament that you are destroying. In Florida it is possible to probate a photocopy of a Last Will and Testament. The failure to memorialize your intended change could lead to a Will Contest or even the Probate of the Last Will and Testament you revoked if unknown to your beneficiaries or if your original will is advanced by prior beneficiaries. For that reason, if it is your desire to revoke a Last Will and Testament, under current Florida law it is much more effective to do so with a subsequent writing. That way your new beneficiaries can receive copies of your updated Last Will and Testament and will know to deposit the Will with a Florida Court upon your death.
Another issue that comes up with revocation is the failure to follow the statutory requirements for revocation. Just like in the creation of a Last Will and Testament, the revocation document has to strictly follow the technical requirements of a Will. Zaidman v. Zaidman, 2020 WL 1696316 (Fla. 3rd DCA 2020). In Zaidman the testator attempted to revoke his prior will with a handwritten will that did not meet the requirements of Florida law for execution. Despite his clear and obvious intent to revoke the original Last Will and Testament with a new one, the Florida Courts determined that the failure to strictly comply with the signature and execution requirements rendered the change invalid.
The bottom line for those intending to modify estate plans in Florida, do it in writing and consult with an attorney to make sure your intended changes will be realized.
Disclaimer: The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
