Blogs from October, 2013


Fundamental Constitutional Right For a Person to Dispose of Property By Will

Florida will lawyers and trust lawyers frequently assert the rights of a deceased person to dispose of their property by a will. The United States Constitution grants no right to dispose of property by a will; however, since 1968, Florida has recognized this fundamental constitutional right under the State Constitution.

Is a Handwritten Will Legal in Florida?

Florida law requires wills to be signed by the Testator and two witnesses. While holographic (handwritten and unwitnessed) wills are not recognized in Florida, if it is signed and attested by two witnesses, it is not considered holographic and may be recognized by Florida courts.

Florida's Ruling on the Validity of Holographic Wills

Recently, the Second District Court of Appeals was confronted directly with how far the constitutional right applies in the context of legislation requiring certain technical formalities with regards to Wills.

  • In Lee v. Payne, 38 Fla.L.W. D1969, (Fla. 2nd DCA Sept. 18, 2013), the Decedent’s fiancé sought to admit to probate Mr. Payne’s Colorado holographic will. A holographic will is a will in testament that has been entirely handwritten and signed by the Testator. Normally, a will must be signed by witnesses attesting to the validity of the Testator’s signature and intent, but in many jurisdictions, like Colorado, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated. Such was the case with Mr. Payne’s will and the fiancé sought to admit the holographic will (which was valid in Colorado but not in Florida) to a Florida probate court.

In the example above, there was no dispute that the Decedent, Mr. Payne, signed his will without attesting witnesses. But, under Colorado law, his will was admitted to probate there because a holographic will that is not signed by at least two witnesses but notarized is valid if “the signature and material portions of the document are in the Testator’s handwriting.”

The Florida court, however, refused to give full faith and credit to the Colorado order admitting the will to probate because the Florida Probate Code does not recognize holographic wills even if they are valid in the state where executed.

As a result, the Decedent, Mr. Payne’s, the estate would pass not to his fiancé (as was intended in his own handwritten will) but would pass pursuant to the laws of intestacy as though he died without any will.

Is Florida's Probate Code Unconstitutional?

The fiance’s probate lawyers challenged the constitutionality of the Florida Probate Code’s provision that did not recognize the holographic will that was valid in Colorado and argued that the Florida Probate Code unconstitutionally restrains a Testator’s right to devise property. Her challenge in our view is not unreasonable and warrants evaluation by the Florida Supreme Court.

Are Unwitnessed Holographic Wills Unreliable?

The purpose of requiring two witnesses to a will is to assure its authenticity and to avoid fraud and imposition.

The assumption that holographic wills are not as reliable as wills executed in the presence of witnesses, is one that requires close examination especially in light of Florida’s recognition of the fundamental constitutional right under the State Constitution for a Decedent to dispose of property by will.

For example, it is exceedingly difficult to forge a successful counterfeit of another’s handwriting throughout an entire document so that the requirement that the document, or at least its material provisions, be entirely in the Testator’s or Testatrix’s handwriting, affords protection against forgery.

There are 26 states that allow holographic wills with statutory provisions to assure reliability. The Supreme Court should evaluate whether a rational basis exists to deny probate of all holographic wills without allowing any inquiry into authenticity.

With these and a variety of other reasons, the Second District Court of Appeals has certified the following question of great public importance to the Supreme Court:

  • Does Florida Statute §732.502(2) and Florida Statute §734.104(a) violate Article I, Section 2 of the Florida constitution by categorically defeating the intent of a testator of a handwritten holographic will without a rational relation to defraud it seeks to cure?

Questions About the Validity of a Will?

If you have questions about whether a will is valid and need help disputing it in court, call our attorneys for guidance. We have extensive experience in will disputes and litigation. 

Schedule a consultation today with our attorneys.


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