It is imperative that a person’s Last Will and Testament be properly prepared by a skilled and competent estate planning attorney and that the execution of this Last Will and Testament is performed appropriately and according to Florida Statutes.   Most recently-drafted Wills are self-proved wills, executed in accordance with Florida Statutes 732.502 and 732.503.

Florida Statute 732.502 sets forth the exact execution requirements for a Will to be valid.  These are the formal steps that must be taken to ensure that a Will was validly signed by the testator and the attesting witnesses.  If a Will is executed without a “self-proving affidavit,” then at the time of the decedent’s death, the witnesses to the Will will need to sign oaths in front of a court official to swear that the Will submitted is the Will the testator signed in front of them.  This can present obvious problems if the testator executed a Will 20 years before death.  Fortunately, the legislature contemplated this problem and provided a mechanism for “proving” the authenticity of the Will at the time of execution.  Florida Statute 732.503 sets for the requirements for a “self-proving” Will.  (more…)

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out!

An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian. 

Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under the care of the guardian, the testator was moved around so that the out-of-state relatives did not have contact with her and were unable to locate her for substantial periods.  Despite that a guardian was being appointed, the decedent was seen by a physician and psychiatrist and was found to be lucid.  She then signed a will, leaving her recent friend (who had asked for the guardianship in the first place), and charities which he solely controlled, the entirety of her quite substantial estate. (more…)