A Look at the Requirements of Will Revocation by Physical Act
Flush It Down the Toilet!
The Law
Florida is one of several states that have a strict requirement for revocation of a person’s Will. Florida law allows a person to revoke their will by either written instructions or by physical activity. For revocation by writing, the document must be a subsequent Will, codicil, or other writing executed with the same formalities required for the original Will (signed at the end and witnessed.) See Fla.Stat. §732.505.
Florida Statutes section 732.506 sets forth the requirements for revocation by the act:
“A will or codicil 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.”
What about flushing it down the toilet?
I’ve heard of criminal cases where there is relevant evidence involving things being flushed down the toilet, but what about in the context of probate litigation? Is a Will properly revoked if it is torn up and flushed down the toilet? This very question was raised in Estate of Adrian Bancker, 232 So.2d 431 (Fla. 4th DCA, 1970) a case that began in Broward County when Adrian G. Bancker died survived by his wife, three natural children, and stepdaughter. Mr. Bancker executed a Will but became disenchanted with his attorney who drafted the Will and who named himself the alternative executor. The decedent’s first attorney, who drew up an earlier Will, informed the decedent that he could reinstate the first Will by destroying the later Will. The decedent subsequently directed his wife, step-daughter, and her husband to destroy the later Will.
The decedent remained in his bed, although he was not bedridden, while his wife, step-daughter, and her husband went into another room, removed the Will from a wall safe, and destroyed it by tearing it into pieces and flushing them down a toilet. The decedent’s bedroom was separated from the den in which the wall safe was located by a screened terrace. The doors were closed between the decedent and the wall safe and he could not see the destruction. He was informed subsequently that it had been done and he nodded his head in approval.
After Mr. Bancker died his widow presented the first Will for probate and obtained letters testamentary. The natural children attacked this Will, alleging lack of testamentary capacity and undue influence. At this point, the widow countered by attempting to re-establish the later Will that was flushed down the toilet for probate. The Broward County judge ruled that Mr. Bancker died intestate.
Don’t Hide in the Bathroom
However, the Fourth District Court of Appeals reviewed the record and reversed, finding that the Will was not properly revoked. Essential to the Court’s ruling was the fact that the statute cited above, must be strictly complied with in order for the revocation to be effective. Because Mr. Bancker was not in the bathroom when the Will was flushed down the toilet, he was not “present” and the attempted revocation was legally ineffective.
The law’s requirements for strict compliance with the revocation statute are consistently upheld by Florida Courts. For example, in Dahly v. Dahly, 866 So.2d 745, 29 Fla. L.Weekly D404 (Fla. 5th DCA 2004) the Court declined to revoke a Will even where the testator:
• Crossed out the name of the designated personal representative;
• Placed the word “delete” over several paragraphs of the Will; and
• Placed his signature with words instructing someone to draw up a new Will incorporating the changes.
I have been on both sides of these cases and have found that Courts usually are persuaded, not by facts indicating what room the testator was in, but more importantly, what was the testator’s intent? This is usually proven through statements to other people, conduct towards people involved as beneficiaries or otherwise interested in the estate, and sometimes extrinsic writings that may or may not qualify as a formal testamentary instrument under the law, but still relevant to a determination of the testator’s intent.