Will Execution
In Florida, a will must be: (1) In writing, (2) signed by the testator- or a designee who subscribes the testator's name at his direction AND in testator's presence, (3) Signed at the end, (4) In the presence of 2 witnesses attesting that testator signed, previously signed, or another person signed at testator's direction, (5) and witnesses must sign in the presence of the testator AND each other.
WHAT TWO TESTS ARE USED TO DETERMINE WHETHER THE WITNESSES HAVE SIGNED IN THE PRESENCE OF THE TESTATOR?
(1) Line of Sight (must be able to see each other sign)
(2) Conscious Presence (testator doesn't need to see the witnesses sign but must be conscious of the witnesses and their act of signing as a witness)
Can a minor execute a will?
No.
Any person 18 years or older may execute a will. An emancipated minor may also execute a Will.
True or False? A will may be revoked by writing.
True.
A testator may revoke his will by making a subsequent writing that declares his intent to revoke his will and is executed with the requisite formalities for execution of a will (Fl Stat 732.505(2)).
This can also be achieved by properly executing a subsequent Will that contains provisions inconsistent with the first will (Fl Stat 732.5050(1)).
Under Florida's intestate distribution scheme, the surviving spouse is entitled to the entire intestate estate, unless __________.
What is a codicil?
A codicil is a document that amends a will by revoking the previous will and republishing it with the new amended terms. A codicil must be executed with the same formalities of a will.
True or False?
The Testator/Testatrix may just sign with an X or his or her initials.
True.
A formal signature is not required.
These are the elements of ______________:
The testator must know:(1) The nature and extent of testator's property
(2) the persons who are the natural object's of the testator's bounty
(3) the disposition the testator is making
(4) and how the above elements relate to form an orderly plan for the disposition of the testator's property
Testamentary Capacity
*A testator must be of sound mind at the time of execution of his will (Fl Stat. 732.501). The testator is presumed to be of sound mind.
*If a will is challenged for lack of capacity, that entire will is void. If a portion of the will is challenged, that portion will be void (Fl Stat 732.5165)
A testatrix wants to revoke her will (non-electronic will) by physical act. What acts can she perform to accomplish this?
Burning, tearing, canceling, defacing, obliterating, or destroying the document (Fl Stat 732.506). The act may be performed by the testatrix or someone acting under her direction and in her presence.
*Florida does not permit partial revocation by physical act, such as crossing out one clause in a will
**An electronic will is revoked by testator (or soneone else at their direction and in their presence) by deleting, rendering unreadable, or obliterating with the intent of revocation by clear and convincing evidence.
True of False? Lineal descendants of a decedent include children who are conceived before, but not born until after, the death of the decedent.
True.
Lineal descendants also include adopted children (Fla Stat 732.106)
What is a pretermitted child?
A child born after a testator has executed his will. If the testator fails to provide for a child born or adopted after execution of the testator's will, the child may claim an intestate share as a pretermitted child
**Unless child has received portion as an advancement, the will demonstrates the omission was intentional, or testator had one or more children when will was executed and devised substantially all of the estate to the other parent of the pretermitted child, and the other parent survived the testator
The Testator's niece is receiving a gift under the Will. Can she also be an attesting witness to the Will and it still be valid?
Yes.
Any competent person may serve as an attesting witness. Florida does not require the witness to be disinterested; however, in practice, this is not advisable. Having two disinterested witnesses may help in any claims in the future if the Will or the testator's capacity is challenged.
On what grounds can a will be contested?
A will contest may challenge testamentary capacity by showing that the will, or a portion thereof was a product of:
(1) Insane delusion (testator persists in believing supposed facts that have no real existence except in his imagination. An illogical belief is not an insane delusion if it is supported by reasoning that derives from a known premise)
(2) Undue Influence (Test: Whether such control was exercised over the mind of the testator so as to overcome his free agency and free will, and to substitute the will of another, so as to cause the testator to do what he would not otherwise have done but for that control)
(3) Fraud (Fraud in the factum- when a person fraudulently causes a testator to execute a will without knowing the nature of the document. For example, A gets B to sign a will but tells them it's a completely different document like a contract for phone service)
(4) Duress (When a person uses threat or physical harm or coercion to cause a testator to execute a will. That will, or a portion thereof, is void if procured by duress)
(5) Mistake (A. When testator executes a will under a mistaken belief of fact, B. When a testator is mistaken about the nature of the document he is executing, C. When a testator may mistakenly sign the wrong when executing reciprocal wills)
(6) Tortious interference (Interference with an expectancy from the Will. Requires proof that Plaintiff had a reasonable expectancy of receiving an inter vivos or testamentary gift)
If testamentary provisions to a spouse are revoked because of divorce, the former spouse is treated as having ___________ the testator.
Pre-deceased
(Fl Stat 732.507(2))
A decedent dies intestate. He is not survived by a spouse or child. He is survived by a sister that lives in New Jersey, his 92 year old mother that is living in an assisted living facility, and a cousin living in Europe. Who will inherit his estate?
Even though she is older and ill, she will inherit his estate. If she dies during the administration of the estate, her estate will inherit because she is "vested". Location of beneficiaries also does not matter for intestacy.
What is a pretermitted spouse?
A surviving spouse who married a testator after the testator executed his will.
What kinds of wills will not be considered valid in Florida?
(1) Wills that don't comply with will formalities (in writing, signed by the testator with 2 witnesses, etc.)
(2) Holographic Wills (Handwritten wills that do not have witnesses. Not valid even if it considered valid in another jurisdiction)
(3) Nuncupative Will aka Oral Wills (Not valid even if it considered valid in another jurisdiction)
When challenging a Will for mistake, what are the 3 mistakes that can be challenged and do they make the will void?
(1) Mistake of Fact- MAY result in an omission, and does not void the will; however, some Courts MAY deny probate depending on the mistake and if it is clear from the face of the will
(2) Mistaken about the nature of the document- VOID
(3) Mistakenly sign the wrong will (for reciprocal wills)- Court MAY reform the document
REFORMATION TO CORRECT:
(a) Interested person may petition Court to reform the terms to conform to Testator's intent (FL Stat. 732.615)
(b) Petitioner must prove by clear and convincing evidence the testator's intent AND that the terms were affected by mistake of fact or law
(c) Court may reform even if the terms are unambiguous
(d) Court may consider evidence relevant to testator's intent even if the evidence contradicts an apparent plain meaning of the will
Under this doctrine, a court may permit the probate of a will that was revoked if the revocation was dependent on the validity of a new will.
Dependent Relative Revocation.
Doctrine is typical invoked when: (1) a testator executes a will, (2) the testator then revokes that will with the intent to make a new disposition as a substitute, and (3) the new disposition is not executed or is invalid.
**Presumption is made that the testator would prefer the previous disposition over intestacy, thereby seeking to to give effect to the testator's intent (as long as the schemes in the two wills are similar)In Florida, a formal administration is administered by a _________________.
Personal Representative
*Summary administrations (estates with assets less than $75,000 do not have a PR)
What kind of property is protected from the claims of most creditors?
Homestead property
*Still may be subject to forced sale to satisfy taxes and assessments, mortgages, obligations contracted for the property, etc
A _____________ is a sworn statement attached to a will that attests that the will was executed in conformity with Florida law.
A self-proving affidavit
The testator and witnesses all sign at the same time and in front of each other and is usually notarized. A will with this affidavit may be admitted into probate without further "proof". Wills without this affidavit will require an Oath of Witness to Will where witnesses will need to be found after the testator passes in order to swear to the Court that they witnessed that this was the Testator's last Will. A self-proving affidavit allows for authentication at the time of execution so there is no need to go find witnesses later after the testator dies.
A presumption of ____________ arises when the beneficiary who receives a gift:
(1) was a substantial beneficiary
(2) had a confidential relationship with the testator/testatrix
(3) was actively involved in procuring the will
Undue Influence
If such a presumption arises, the beneficiary then had the burden of producing a reasonable explanation for their active role in the preparation of the will. More proof may be required to rebut this presumption if the testator was mentally impaired at the time. In the absence of a confidential relationship, a gift that prefers a stranger to blood relatives does not by itself constitute proof of undue influence.
A testator executed a will in 2005, and a codicil to that will in 2008. In 2010, he moves to another part of Florida, gets married, and has a child, so he feels like it's time to make a new will. He executes a new valid will in 2013. In 2017, he gets divorced and has lost a lot of his assets. He rips up the 2013 will and finds an old copy of his 2008 codicil. He puts it in his safe deposit box and tells his close friends that is his last will. He dies in 2020. Did he die testate or intestate?
Intestate.
First will was revoked by codicil. Codicil republished the first will with new terms. Executed new will which revokes the previous codicil. He rips up the 2013 will, thereby revoking it. All wills revoked. A revival of a will requires it to be republished with all will formalities (Fla Stat 732.508)
Property that is to be disposed of in a will is ______________ if it is no longer in the testator's estate at the time of his death.
Adeemed by Extinction
*Certain statutory exceptions. A specific devisee gets any balance of the purchase price owing at the testator's death, any amount of a condemnation award for taking of property, any unpaid proceeds on fire or casualty insurance or recovery for injury, or property owned by testator at death and acquired as a result of foreclosure.
A _______ may be filed by an person who believes that a testate or intestate estate may be administered without his or her knowledge.
Caveat
Once filed, the Court must notify the caveator before a will is admitted to probate or a personal representative is appointed.