Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005)
Noting that this case presented an issue of “first impression in Florida,” the 4th DCA affirmed a trial court’s refusal to enforce burial instructions in the decedent’s Will based on clear and convincing evidence presented by his wife of forty years and others that he had changed his mind since executing his Will. The Fourth DCA held that a testator’s body is not considered “property.” As such, the general rule of construction found in Probate Code Section 732.6005(2) requiring Wills in Florida to be deemed to pass all property that the testator owns at death does not apply to bodily dispositions. Instead, the 4th DCA formulated the following rule regarding the disposition of a Florida testator’s body:
[A] testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.