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Florida is a magnet for people and foreign capital. Last year alone international home buyers poured $15.6 billion into our state’s economy. Florida’s also the first choice for relocating retirees within the U.S., and the single largest recipient of all international migration to the U.S.

In Malleiro v. Mori, the 3d DCA observed that the “people of Florida benefit from the way many citizens of distant states and countries visit, invest, and often stay to live out their golden years in Florida. Some are drawn by the comfort of Florida’s sunshine and coastlines. Others come for the security provided by our low tax economy in which the personal income tax is barred by our traditions and expressly by our Florida Constitution. We owe it to them to ensure that their testamentary intentions are strictly honored regarding the disposition of their Florida property.”

Unfortunately, the statutory “clarifications” suggested by the 3d DCA in Malleiro v. Mori have yet to be realized (although they were the subject of an excellent RPPTL section white paper). Retirees from Colorado might still be surprised to learn their wills don’t always work in Florida, same goes for all those retirees from Illinois with revocable trusts that pass muster back home, but fail once they’ve moved to Florida. And just because your will’s valid in Argentina, doesn’t make it so in Florida.

Why hasn’t Florida adopted the Uniform Probate Code’s expansive test for foreign wills?

It’s not by accident all these non-Florida wills and trusts — which were perfectly valid when created back home — fail once they’re tested in a Florida probate proceeding. These unfortunate outcomes are a direct result of a policy choice we’ve made in this state: unless a foreign will’s executed in strict conformity with Florida law, it’s not going to be accepted in a Florida courtroom. In today’s interconnected world, this exceedingly narrow approach is outdated and a trap for the unwary.

It doesn’t have to be this way. For example, at the other end of the spectrum is the expansive approach reflected in section 2–506 of the Uniform Probate Code (UPC). Here’s what the UPC approach would look like if adopted in Florida:

A written will is valid if executed in compliance with [F.S. 732.501(1)] or its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

UPC Comment

This section permits probate of wills in this state under certain conditions even if they are not executed in accordance with the formalities of [F.S. 732.501(1)]. Such wills must be in writing but otherwise are valid if they meet the requirements for execution of the law of the place where the will is executed (when it is executed in another state or country) or the law of testator’s domicile, abode or nationality at either the time of execution or at the time of death. Thus, if testator is domiciled in state 1 and executes a typed will merely by signing it without witnesses in state 2 while on vacation there, the court of this state would recognize the will as valid if the law of either state 1 or state 2 permits execution by signature alone. Or if a national of Mexico executes a written will in this state which does not meet the requirements of [F.S. 732.501(1)] but meets the requirements of Mexican law, the will would be recognized as validly executed under this section. The purpose of this section is to provide a wide opportunity for validation of expectations of testators.

This UPC approach would have validated all of the non-Florida wills and trusts noted above, as well as the Belgian will rejected in the following case.

Case Study

Sacha Zaidman and Patricia Zaidman v. Natchaya Zaidman, — So.3d —-, 2020 WL 1696316 (Fla. 3d DCA April 08, 2020)

This case deals with two competing wills: a Florida will executed in 2012 in conformity with Florida law, and a Belgian will executed in 2015 in conformity with Belgian law. Unfortunately for the proponents of the Belgian will, it wasn’t witnessed by two witnesses, only one. One witness is enough in Belgium, not in Florida. Here’s how the 3d DCA described the Belgian will:

The second will was filed on behalf of the appellants, Mr. Zaidman’s son Sacha and daughter Patricia (the “Children”). The document was handwritten, dated May 17, 2015, and deposited with a Rabbi in Antwerp, Belgium (the “2015 Will”). The 2015 Will purports to revoke all previous wills, states that it is only to be revealed to the Children after Mr. Zaidman’s death, and provides that any dispute regarding it is to be resolved in the Orthodox Rabbinical Tribunal in Antwerp rather than in a secular court.

Under Florida’s current “gotcha” approach to non-Florida wills, the Belgian will, which had only one attesting witness, was doomed from the start — even if we assume it was perfectly valid at the time of execution in the place where it was executed. So saith the 3d DCA:

Here, the 2015 Will was handwritten by the testator in the presence of (at best) one witness. This alone makes the will invalid as a matter of law. See § 732.502(1), Fla. Stat. (2015). Contrary to the Children’s assertion, there is no need for an evidentiary hearing to determine whether there was more than one witness. The affidavit of Mr. Matthias Moortgat, a Belgium notary, states that the testator executed the 2015 Will only “in the presence of Rabbi Yossef T. Hacohen.” An evidentiary hearing would be futile. As correctly stated by the Wife in her answer brief: “Even assuming that the 2015 Will is valid in Belgium, it is still invalid in Florida for failing to comply with the statutory formalities provided in Section 732.502(1).”