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The Devil is Always in the Detail

Tue, Nov 05, 2013 at 12:00AM

mattA will is the most common instrument associated with estate planning and is a document most people are familiar with due to movies, television, and other forms of media.  One question many clients have is how formal does a document have to be in order for it to be considered a valid will.  Technically speaking, any piece of paper can serve as a will so long as it satisfies certain requirement as to formality.


To begin, in order for a document to constitute a valid will in the state of Florida it must be in writing.  A document can be hand-written, typed, or printed, but a will can never be oral.  An oral estate plan is referred to as being “nuncupative” and is not legally binding.  Once an individual’s wishes are written down the document must be signed by the testator at the end.  Although someone can sign on his or her behalf as a proxy, he or she must do so in the presence of the testator.  In the event someone is disabled or unable to write, a simple mark such as an “X” is sufficient.  Whenever the testator or the proxy signs the will they must do so in the presence of at least two witnesses who must then also sign the document in the presence of the testator and in the presence of each other.  While this might seem like a burdensome formality, it is important not to take shortcuts as Florida courts strictly enforce all execution requirements.


In order to qualify as a witness one must be at least eighteen years old and have full capacity.  While the testator can choose to have one of their beneficiaries sign the will that is not necessarily a good idea as it can lead to claims of undue influence and self-interest can affect credibility.  If the will is lost, and there are no disinterested witnesses, it will be impossible to establish the terms of the will. 


It is generally a good idea to include in the will what is known as a “self proof affidavit.”  A self proof affidavit is sworn testimony that the execution of the will comported with Florida law.  Both the testator and the witnesses will sign the affidavit which will in turn circumvent the need for witnesses to later attest to the accuracy of the will.
Finally, while it is certainly advisable to update a will on a regular basis, a will from another state or jurisdiction will be valid in Florida unless it is an oral will or unless it has no witnesses.  Aside from those two exceptions there is technically not a need to rewrite the document upon entry into Florida.


The formalities addressed in this article are only some of the requirements imposed by Florida law.  If you are considering creating a will or another estate planning document I would encourage you to contact our firm in order to schedule a consultation.


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