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Under F.S. 732.502(2), 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. This is basic stuff for Florida probate lawyers.

What may come as a surprise to many is that when it comes to will-execution requirements, there’s no one-size-fits-all. Because there’s no federal constitutional right to dispose of property by will, each state is free to choose it’s own set of standards reflecting widely varying public policy choices.

Florida has opted to emphasize fraud avoidance, at the expense of automatically invalidating a % of wills all would agree are legitimate. Other states have opted to emphasize testamentary freedom, at the expense of opening the door for more inheritance litigation over a % of wills all would agree are highly suspect . . .  but very difficult to challenge in court because, by the time your will contest gets litigated, your single most important witness, the testator, is dead. Which means we’re forced to litigate these cases based in large part on the worst evidence available: the self-interested hearsay testimony of those claiming a slice of the estate for themselves.

In some states oral wills are valid in limited circumstances (usually during a person’s “last sickness”) and in many states, including Colorado, holographic (self-written) wills are valid . . . whether or not they’re witnessed. The rule permitting un-witnessed handwritten wills also applies in Canada.

For example, on June 8, 1948 in Saskatchewan, Canada, a farmer named Cecil George Harris who had become trapped under his own tractor carved a will into the tractor’s fender. It read, “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” Under Florida law this unwitnessed holographic “will” would have been ignored. Not so in Saskatchewan, Canada. Mr. Harris died and his tractor fender, which is currently on display at the University of Saskatchewan College of Law, was probated and stood as his will.

On June 8, 1948, Cecil George Harris scratched his final wishes onto this panel as he was dying, pinned under a piece of farm machinery. His words were recognized as his will, an important moment in Canadian legal history. (Merle Massie)

Case Study

Lee v. Estate of Payne, — So.3d —-, 2013 WL 5225200 (Fla. 2d DCA September 18, 2013):

In the linked-to case above a Colorado man wrote his own will. Even though the will wasn’t witnessed, because it was written in the decedent’s own hand it’s valid under Colorado law and was admitted to probate by a Colorado court. The issue then became whether a Florida court was required to do the same.

Answer: NO. Here’s why: F.S. 734.104(1)(a) says so. Under this statute non-Florida wills accepted to probate by non-Florida courts are valid in Florida, but only if they comply with the witness requirements found in F.S. 732.502(2). The Colorado will wasn’t witnessed, so it’s not valid in Florida … regardless of what Colorado law or a Colorado court might say.

It’s the law, but is it constitutional?

Reasonable people might disagree about who has the better rule: Florida or Colorado. But unless you can find a constitutional argument for why the Florida statute shouldn’t be enforced, you’re stuck with it. Constitutional challenges come up from time to time in inheritance cases . . . and almost never succeed. I’ve previously written here about a constitutional challenge to Florida’s elective-share statutes. It didn’t work then and and it’s not working now. Here’s how the 2d DCA summarized the failed constitutional challenge in the linked-to case above:

[I]n In re Estate of Olson, 181 So.2d 642 (Fla.1966), . . . the supreme court considered the issue now before us:

Whether or not an intelligently written will in the handwriting of the deceased, who was fully competent and cognizant, will be recognized, or voided for the sole reason of the absence of two witnesses, as required in Section 731.07 F.S.; and whether or not such statutory requirement invades and violates constitutional rights.

Id. at 642. Olson affirmed the trial court’s order denying probate of a holographic will. Id. at 644. . . . [T]he supreme court held that, although the governing statute may have thwarted the testator’s intent, the statute was constitutional, subject only to legislative change. Id. at 643. The court noted that the statute’s intent in requiring two witnesses’ attestation was “to assure [the will’s] authenticity and to avoid fraud and imposition.” Id.

. . .

Ms. Lee now asks us to revisit the continued validity of Olson. Recall that Olson observed that requiring two witnesses to a will was “to assure its authenticity and to avoid fraud and imposition.” 181 So.2d at 643. Holographic wills, under Olson, are not as reliable as wills executed in the presence of witnesses. Ms. Lee challenges that assumption and argues that handwritten holographic wills are inherently reliable. “[I]t is exceedingly difficult to forge a successful counterfeit of another’s handwriting throughout an entire document, so that the requirement that the document, or at least its material provisions, be entirely in the testator’s or testatrix’s handwriting, affords protection against a forgery.” Jay M. Zitter, Annotation, Requirement that Holographic Will, or its Material Provisions, Be Entirely in Testator’s Handwriting as Affected by Appearance of Some Printed or Written Matter Not in Testator’s Handwriting, 37 A.L.R. 528, § 2[a] (1985) (footnotes omitted). Ms. Lee notes that twenty-six states allow holographic wills, with statutory provisions to assure reliability. She contends that no rational basis exists to deny probate of all holographic wills without allowing any inquiry into authenticity.

Nice try, but no cigar. The 2d DCA punted on deciding the constitutional challenge, citing In re Estate of Olson, 181 So.2d 642 (Fla.1966) as binding authority. However, we may not have heard the last of this case. Perhaps revealing some sympathy for the challenger’s argument, the 2d DCA asked the Florida Supreme Court to weigh in on the issue by certifying the following question:


Stay tuned for more . . .