Oral (nuncupative) wills and un-witnessed handwritten (holographic) wills aren’t valid in Florida under any circumstances, no matter how strong the evidence is that they’re otherwise legitimate.
On the other hand, if a handwritten will’s properly witnessed it’s as valid as any other will. Yes, handwritten wills work in Florida — as long as they’re properly witnessed. The controlling statute is F.S. 732.502(2), which provides as follows:
Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
This is basic stuff for Florida probate practitioners. So do we really need an appellate decision to clarify this simple statute? Apparently we do.
Case Study
Morrow v. Morrow, — So.3d —-, 2023 WL 1807799 (Fla. 3d DCA February 8, 2023)
In this contested probate case the petitioner sought to probate a handwritten will that on its face complied with the execution formalities for a valid will under Florida law. The probate judge appears to have concluded that just because the will’s handwritten it’s not valid and struck the will. Wrong answer. Handwritten wills work in Florida as long as they’re properly witnessed. So saith the 3d DCA:
In these adversarial probate proceedings, appellant, Matthias Morrow, challenges an order striking the purported last will and testament of the decedent, Bunny Lee Morrow, as violative of section 732.502, Florida Statutes (2018). On appeal, appellant contends the trial court erred in striking the document without first conducting an evidentiary hearing. Upon appellee’s commendable confession of error and our own independent review of the record, we reverse. Although the will was handwritten, it reflected the signatures of the testator, two witnesses, and a notary, along with a notary seal. § 732.502(1), Fla. Stat. (“Every will must be in writing and executed as follows: … The testator must sign the will at the end …. The testator’s … [s]igning, or … [a]cknowledgment … [t]hat he or she has previously signed the will … must be in the presence of at least two attesting witnesses …. The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.”); § 732.502(2), Fla. Stat. (“A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.”). Consequently, it did not facially violate the Florida Probate Code. Accordingly, we reverse and remand for further proceedings.