A Review Of Testamentary Formalities In Florida: How To Make a Valid Will

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Following the testamentary formalities is one of the most important requirements to successfully make a valid will under Florida law.  To make a valid will in Florida, the will must be:

  1. In writing;
  2. Signed by the testator at the end or by some other person for the testator;
  3. Signed and attested by two witnesses in the presence of the testator and the presence of each other.

 

The testamentary formalities to make a valid will under Florida law are found at § 732.502, Fla. Stat.

Who Can Make a Valid Will In Florida?

Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a valid will under Florida law.  § 732.501, Fla. Stat.

To be of sound mind (to have testamentary capacity) to make a valid will, a Florida testator must understand:

  1. The nature and extent of the property to be disposed of;
  2. The natural objects of the testator’s bounty; and,
  3. The practical effect of the will as executed.

 

A testator may still have testamentary capacity to execute a valid will even though the testator may be frequently intoxicated, use narcotics, have an enfeebled mind, failing memory, or vacillating judgment.

A Florida Will Must Be Signed By the Testator Or At the Testator’s Direction

One of the key testamentary formalities for a valid Florida will is the testator’s signature on the will.  Either:

  1. The testator must sign the will at the end; or
  2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

 

The preferred method for signing is for the testator to sign the will him or herself.  If the testator is unable to physically sign the will, then having another person sign the will for the testator might be the only option.  However, the inability of the testator to sign his or her name, even if it has nothing to do with mental capacity, will beg questions about the testator’s testamentary capacity, and could be used as grounds to support a will contest.

Witness Requirements For a Florida Will

Another testamentary formality that is critically important under Florida law is the witness requirements to make a valid Florida will.  The testator’s signing of the will, or acknowledgment that he or she has previously signed the will, or that another person has subscribed the testator’s name to it, must occur in the presence of at least two attesting witnesses. § 732.502, Fla. Stat.

Any person competent to be a witness may act as a witness to a will under Florida law.  § 732.504.

Florida’s Presence Requirement: Witnesses Must Be In The Presence Of the Testator And Of Each Other

The “presence requirement” of the witnesses is one of the most easily botched testamentary formalities under Florida law.  Florida law requires that “the attesting witnesses must sign the will in the presence of the testator and in the presence of each other.”  § 732.502, Fla. Stat.  This amounts to a “line of sight” test, where everybody needs to see everybody else sign.

In Jordan v. Fehr, a Florida appellate case, the court held that a Florida will was not validly executed, because there was no admissible evidence which could establish that the will was executed by the decedent in the presence of one of the witnesses or that the witnesses attested the will in the presence of each other.

In Jordan, the will was not self-proved (discussed below).  Therefore, the proponent of the will had the burden to establish the will’s formal execution and attestation.

This execution was said to have taken place at Grannie Mac’s restaurant where the two witnesses, Ketron and Correia, worked. The circuit court found that issues of fact remained as to whether the will was properly executed, and thus denied summary judgment as to that ground. While we agree that certain facts concerning the execution are in dispute, the depositions offered by Jordan in support of her claim of valid execution do not contain facts which establish that the decedent signed or acknowledged the will in the presence of the two attesting witnesses and that the two attesting witnesses signed the will in the presence of each other. At deposition, witness Correia testified that he did not see Feldman sign the will. Correia’s deposition was taken at one of the tables in Grannie Mac’s after it had closed for the day:

Q: All right. Did you see Mr. Feldman sign his name there?

A: No, I did not.

Q: I believe you said you can’t recall whether he was here or not when you signed it?

A: I’m not totally sure. I am not a hundred percent sure.

Q: Who asked you to witness the will?

A: Keith. Asked me to witness this paper or — I don’t know what he said. I don’t listen to what they are asking. I totally trust him, okay, and if he asks me to sign something, I’ll sign it.

Q: Keith asked you to sign this —

A: Right.

Q: —the document that’s Plaintiff’s Exhibit 5, second page?

A: Right. If you want to know, I walked out here, I can see his name, well, I’m like a monkey, I wrote my name and my address and I was gone.

Q: Where were you when you said you walked out here?

A: Out the door, it’s the end of the day, I’m leaving.

Q: Where were you before you came out to sign it?

A: In the back.

Q: And so you walked out here and he asked you to sign it and so you signed it—

A: Right.

Q: — and walked off —

A: Exactly.

(Emphasis added).

Ketron, the other purported witness to the will, first claimed that Correia was present when the will was signed by the decedent, and then, when questioned as to where Correia was, changed his testimony and said:

I really don’t know, seriously, so I’m not going to answer because I don’t recall. So — I mean, you know, I don’t know if he was sitting down, standing next to him, by him, or whatever. He may have been in the bathroom for all I know. I don’t recall so I’m just going to say I don’t recall on that part of it.

The Florida appellate court determined there was no admissible evidence to establish that the will was validly executed.  It is never a good sign if one of the witnesses testifies that he is like a monkey and will do what he is told and leave.

Does a Florida Will Have To Be Notarized To Be Valid?

No, having a will notarized is not one of the testamentary formalities required under Florida law to make a valid will.  However, a Florida will can be made self-proved at the time of its execution or any subsequent date by the acknowledgement of it by the testator and the affidavits of the witnesses, and this is done in front of a notary.  Florida statute § 732.503 provides a form to make a will self-proved, which should be substantially followed.

Making a will self-proved negates the need to have the witnesses testify to the testamentary formalities of the will to establish its validity to admit the will to probate. Of course, if the will is challenged, the testimony of the witnesses would be required.

The best way to make sure that you have created a valid will that complies with the testamentary formalities under Florida law and carries out your wishes is to work with a Florida probate attorney.

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Probate Litigation and Will Contests
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