Florida Wills Flashcards
What are the 7 requirements for creation of a valid will?
- T must be 18 or over
- in writing
- T must sign will
- at the end of the will
- in the presence of 2 witnesses
- who sign in T’s presence
- and in the presence of each other
What happens if a portion of the will (e.g. a clause naming personal representative) follows the T’s signature?
If clause present at time of execution and T just signed above it, in FL, it’s ok. The “end” is referring to a time sense , not a place on the document. (most jxs., everything above signature is good, everything below is bad).
BUT, if the clause was added after execution – uniform throughout US – will is valid but the addition is not.
T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Admissible to probate?
FL: No special break for holographic wills. No witnesses here, so no valid will even though in her own handwriting.
Some states allow handwritten and signed by T holographic wills. NOT FLORIDA.
BUT, a handwritten will witnessed by 2 witnesses IS VALID.
T in hospital bed with contagious disease when will executed. 2 witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen, “This is my will. It looks OK; where do I sign?” AFter T signs, will brough out to hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Has will been validly executed?
FL: NO definitive authority – mention both tests:
Scope of vision test (minority rule): in each other’s presence only if they could see each other sign. Will flunks in hypo.
Conscious presence test: if they are conscious of where each other are and what each other are doing, then ok. In hypo - good to go.
Must T’s estate be administered in FL if he is a domiciliary of Spain and executed a will that complies with the law of Spain but not FL? T dies owning FL real estate.
Yes. Primary administration will be domicile at death, but ancillary admin in each place T owned real property.
Is T’s will valid in FL if it is written in Spanish and does not meet the FL wills statute but does meet Spain’s wills laws?
Yes. Will have to provide court with English translation.
The will is valid if it meets either the FL laws or the law of the decedent’s domicile at the time of execution.
**NOTE: It cannot be an unattested holograph.
“I give my faithful nurse, Nell, the sum of $30,000.” Nell is one of two attesting witnesses to the will. Does Nell take the bequest under the will?
Yes. It’s bad practice because it creates an implication of undue influence, but someone must prove the undue influence. If they do, then she can’t take.
What is the rule re proof of wills at probate?
- Oath of any one attesting witness taken before circuit judge or court clerk.
- If witnesses cannot be located or are incompetent or dead, oath of personal representative that he believes teh writing to be the decedent’s last will.
(As a matter of practice, should make the will self-proving).
How do you make a will self-proving?
At the time the will is signed by T and attesting witnesses (or sometime thereafter but within T’s lifetime), T and witnesses sign a self-proving affidavit under oath before a notrary public.
- The affidavit recites all elements of due execution.
- Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc) are conclusively presumed.
* No one can contest the will for lack of formality, but can still go after for capacity, etc.
Once administration of an estate is completed, everything is final. Thus, a later discovered will ____ be admitted to probate.
CANNOT
What does “in duplicate” mean? E.g., Susan property executed a will in duplicate giving all property to her children.
She executed 2 copies with original signature.
Revocation of a will by a physical act requires:
- intent to revoke AND
- physical act
- Burned, torn, canceled, obliterated, destroyed.
- Neither standing alone is enough.
An act of revocation on one executed copy revokes ________.
all executed copies.
In 2009, T property executed a will in duplicate giving all property to her children. In 2011, she wote “VOID” on one of the copies of the 2009 will and drew many vertical lines across the front of the one-page document. Will revoked?
Yes. An act of revocation on one executed copy revokes all executed copy.
The language VOID clarifies her intent, but just drawing one line through language + intent is enough.
MUST cross some language off of the will.
Revoked?
- VOID written on back of will?
- “I cancel this will” written and signed in margins?
- VOID written on face of Xerox copy?
All, no.
Must cross some language off of the will itself.
What presumption arises if:
- Will is in T’s possession from the time of excution until death and it was found in mutilated condition after T’s death?
- Will last seen in T’s possession and control not found after T’s death.
- T did the act with intent to revoke.
- Reason it can’t be found is that T destroyed it with the intent to revoke.
* These are reubuttable.
Revocation by another person must be
- at T’s direction AND
2. in T’s presence
T calls his attorney, who is holding his will, and orders his attorney to destroy the will.
- If the order is never carried out, will revoked?
- If attorney does destroy the will, revoked?
- Nope. Need intent + physical act. Intent alone is not enough.
- Nope, because for revocation by proxy, need T’s direction + T must be present.
What is the lost wills statute?
If a will was destroyed, but not revoked, how can the will be probated?
- Due execution must be proved by testimony of attesting witnesses AND
- Contents must be clearly and distinctly proved by the testimony of at least 2 disinterested persons, a correct copy being the equivalent to one of them.
* If can’t do these things, then act as if the will had been revoked.
What is a correct copy in re to the lost wills statute?
carbon or xerox copy == not a typewritten draft from which only a few minor changes have been made.
What happens if a later codicil is inconsistent with an earlier will?
If the C makes no reference to the will, but contains slightly inconsistent provisions, to teh extent possible the will and codicil are read together. Where inconsistent, the later document controls and thereby revokes the inconsistency in the prior will.
What is a codicil?
An amendment to a will. Must be made with the same formalities as a will.
Revocation of a will revokes all ____ thereto. BUT, revocation of a ___ to a will does not automatically revoked the _____. Instead, in the abnsence of contrary intent, it is presumed that T intended his will as originally executed.
codicils
codicil
will
What effect does divorce have on a will? Say T left W his house and money, but 2 years later, he divorces W. One year later, without changin will, he dies.
- What if separated?
- What if separated with property settlement agreement?
- What if they remarry?
Divorce, following a will, revokes all provisions in favor of the ex-spouse. Construe the will as if Sheila were dead.
- Mere separation does not affect her rights under the will.
- Separation with property settlement agreement = waiver + construe as if she were dead.
- If they re-marry, she’s back in.
Can an interlineation be given effect?
NO, unless
- after the change was made, T re-executes the will OR
- T republishes the will by codicil. (occures when T makes teh change on the will, then on a separate sheet of paper writes out the reaffirmation to execute the will as changed and does all the stuff that makes a will compliant).
* Essentially, have to do all of the formalities again.
T/F: In FL there can be no partial revocation by physical act.
TRUE!
Can revoke in entirety by physical act, but not partial.
So if an interlineation fails, the previous designation in the will is not revoked.
If T goes to his will, which says $10,000 to Dan and crosses out $10,000 and puts $15,000. The $15,000 must meet the interlineation rules. If it doesn’t the $10,000 stays. NOT revoked by the cross-out.
What is the Dependent Relative Revocation rule? DRR?
Allows us to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
*T executes W-1. Later he executes W-2, which “hereby revokes all wills heretofore made by me.” Later, with the thought that he now prefers the terms of W-1, T destroys W-2, thinking W-1 will now be in effect. He dies. What happens?
So long as W-1 satisfies the lost will statute, it will be revived. DRR allows to disregard a revocation because it was based on a mistake of law and becuase T would not have revoked W-2 but for the mistake.
*T executes W-1. Later he executes W-2, which “hereby revokes all wills heretofore made by me.” Later, with the thought that he now prefers the terms of W-1, T destroys W-2, thinking W-1 will now be in effect. He dies. What happens?
So long as W-1 satisfies the lost will statute, it will be revived. DRR allows to disregard a revocation because it was based on a mistake of law and becuase T would not have revoked W-2 but for the mistake.
As a normal matter, a will does not go into effect until admitted to probate at death, but we make an exception if:
the will expresses a revocation of earlier wills. That provision is immediately in effect.
To incorporate an extrinisc document by reference in a will:
Exception?
(no formalities)
DIE
- writing must be in Existence at the time the will was executed.
- will must manifest an Intent to incorporate the document.
- will must Describe the writing sufficiently to permit its identification.
EXCEPTION: Will may refer to a written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (other than money) not specifically disposed of by the will.
The written list must be signed by T and it must describe the property with reasonable certainty.
May be written before or after the will was executed.
May be altered at any time.
What is the exception, followed in FL, to the rules re incorporating an extrinisc document into a will?
The will may refer to written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (not money) not specifically disposed of in the will.
Written list must be signed.
May be written before or after the will was executed.
May be altered at any time.
T must describe the property with reasonable certainty.
SDTA
What are the lapse/ anti-lapse rules?
- When a benficiary named in teh will or revocable trust dies before the T, the gift lapses, UNLESS
- It is saved by the state’s anti-lapse statute.
- In FL, the anti-lapse statute applies when the predeceasing beneficiary is the T’s grandparent or a descendent thereof who leaves issue.
- Gift goes to issue. (It does not matter if predeceasing beneficiary’s will leaves all to her husband – follow the anti-lapse statute).
T devises a will in 2004, it provides, “I give the sum of $5,000 to my sister, Paula.” Paula dies in 2005; she is survived by her husband H and their two children. Paula has a will that leaves all of her estate to H. T dies in 2010. Who takes the $5,000?
Paula’s 2 kids split the $5,000.
Generally the gift would lapse, but FL’s anti-lapse statute provides that the gift does not lapse if the predeceasing beneficiary is the T’s grandparent or a descendant therof who leaves issue.
Here, Paula is a descendent of T’s grandparents (because she is T’s sister) and she left 2 children (issue). Thus, the gift goes to her two children.
What is the class gift rule in re to the anti-lapse statute?
If a will makes a gift to a class, only the class members who survive the T take the share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met.
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reaosn, _____.
the surviving residuary devisees take the entire residuary estate in proportion to tehir interests in the residue.
** Look for anti-lapse statute to apply if one of the devisees is a grandparent of T or a descendant of a grandparent of T.
What is a specific devise or bequest?
Gift of a specific asset and that asset only.
E.g., I devise Blackacre [my 2005 Cadillac] to my son, John.
E.g., “my car” or “all of my bank accounts” All ok because a will speaks as of the date of death.
What is a demonstrative legacy?
Gift of a pecuniary amount + funding instructions.
E.g., I give the sum of $5,000 to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.
What is a general legacy?
Gift of a specified pecuniary amount.
E.g., I give the sum of $10,000 to my daughter, Donna.
What is a residuary bequest?
The gift of whatever is left.
E.g., I give all the rest, residue, and remainder of my property to my wife, Agnes.
What happens if T’s estate is partially insolvent at the time of his death? In what order are the gifts sacrificed (abated) to satisfy funeral expenses, expenses of administration, and creditor’s claims?
- property passing by intestacy
- residuary devises and bequests
- property not specically or demonstratively devised (general legacies)
- specific and demonstrative gifts
What type of gifts does ademption apply to?
specific only
What is the general common law rule re ademption?
If T bequests a specific gift to John and the specific item is not available at the time of T’s death, then John takes nothing.
E.g., T bequests Blackacre to John. Some years before her death, T sold Blackacre, which was specifically devised to John. John’s gift is adeemed. Beneficiary takes nothing.
What are the two FL rules that vary from common law to take the edge off of ademption?
- If will executed before T declared incompetent: If specificially devised property is sold by guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian, specific devisee has a right to a GENERAL LEGACY equal to the net sale price, condemnation award, or insurance proceeds unless T’s disability has been adjudicated to have ceased and T survives the adjudication by one year. (Wrote the will while competent, now incompetent, don’t want the stuff that happened while incompetent to mess w/ the will).
- A specific devisee has the right to the remaining specifically devised property AND
- any balance of purchase price owing from purchaser when contract is still executory at T’s death. (J gets any payments due from Mary under the contract to sell BA to Mary if she still owes payments on the sale)
- Any amount of condemnation award for taking the property, to the extent unpaid at T’s death.
- any amount of fire or casulaty insurance proceeds unpaid at death.
- property acquired as a result of a foreclosure of a security interest on a specifically devised note.
I give and bequeath my Rembrandt painting to my daughter Dora. The Rembrandt painting is incinerated in 2012. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?
No, Dora is adeemed. The incompetency statute doesn’t come into play. Any amount of fire or casualty insurance UNPAID, but here he lived long enough to collectthe insurance.
What is the rule if the specific bequest increases?
E.g., T bequeaths his 100 shares in Acme stock to his son, Simon. At the time of death, T owned 200 shares, consisting of the 100 he owned at the time he executed the will and an additional 100 that were distributed via stock dividends. How many shares does the son take?
Son takes all 200.
Rule: Specific devisee takes any additional or other securities of the same entity owned by the T because of action intiated by the entity, excluding any acquired by exercise of purchase options.
