Florida Probate Blog

Lawyers and probate courts are frequently asked by relatives of a deceased to consider evidence well beyond the four corners of a last will in determining the “true” donative intent of the testator. However, courts, at least in Florida, are generally bound by the language of a person’s last will and testament unless there is some ambiguity warranting the court’s examination of extrinsic evidence. There are two types of ambiguities in the typical last will and testament construction cases: A last will is “patently ambiguous” if it is ambiguous on its face. Patent ambiguities usually result in the probate courts finding that there is no valid will in effect and no extrinsic evidence is permitted. Some courts have held that where there is a patent ambiguity as to the testator’s intent, the probate court may consider extrinsic evidence. Remember extrinsic is evidence that is not within the document (in this […]

A Call For Help from the Probate Bar to the Psychology Clinicians The dramatic increase of cases challenging the validity of wills based on the deficient mental capacity of the person making the will has been measured, verified, and commented on by many legal observers. The reason for the increase in probate litigation is subject to debate; however, I have found in my discussions with other trust and estate practitioners that most will agree the relevant factors causing the increase include the rapidly growing number of older persons with medical and psychiatric problems affecting their mental and cognitive ability; the tremendous transfer of wealth taking place between the World War II and baby boomer generations and the change in the traditional nuclear family. See Daniel Marson and Laurie Zebley, The Other Side of the Retirement Years: Cognitive Decline, Dementia, and Loss of Financial Capacity, 41 Ret.Plan. 30 (2001); Harold T. […]

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 act. 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 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.”

Ouch! Stinging Stipulations: Florida’s First District Court of Appeal reverses trial court’s appointment of personal representative of estate based on strict application of probate statute and the litigants’ own stipulation. As a probate litigation attorney, I frequently stipulate to a variety of things as a matter of professional courtesy and/or for judicial economy and efficiency. However, as the opinion released today by the First district Court of Appeal reminds us, stipulations have implications and consequences that are sometimes visible only to an experienced eye.