The 'void' in Florida's will revocation statutes.

• Author: Ossin, Stacy L.

Often events or changes of heart cause testators to feel differently about their dispositive schemes. Frequently, such testators undertake making alterations themselves. For testators domiciled in Florida, there are two statutes applicable in such circumstances. Florida courts will evaluate the testator's actions under either F.S. [sections] 732.505, relating to revocation by writing, or F.S. [sections] 732.506, relating to revocation by physical act. The issues discussed in this article address: whether Florida courts should examine writings, disqualified by F.S. [sections] 732.505, under F.S. [sections] 732.506; whether the legislature should include additional categories to the delineated list currently in the revocation by act statute; and whether current legislation sufficiently provides a mechanism for evaluating writings under Florida's revocation statutes.

Suppose a testator merely writes on the will, but the writing does not satisfy the requirements of F.S. [sections] 732.505, nor does it appear at first glance to be a revocation by physical act as required by F.S. [sections] 732.506. For example, instead of writing a new will or cutting off the signature, the testator wrote a word on the last page of the will. This situation arose in the Florida case of In re Dickson, 590 So. 2d 471 (Fla. 3d DCA 1991). In Dickson, the testator wrote three lines at the bottom of the last page of the will following the self-proof affidavit: "March 16, 1987 I myself declare this will null and void of sound mind."(1) The testator signed his name after these three lines.(2) Additionally, the testator wrote and encircled the word "void" on the notarial seal located on the self proof affidavit.(3) The trial court admitted the will to probate, finding that the revocation failed as a matter of law.(4) On appeal, the Third District Court of Appeal reversed and remanded the case to determine the testator's intent,(5) also holding that revocation under F.S. [sections] 732.506 is a question of fact.(6)

Questions of fact, which must be determined on a case-by-case basis, add more confusion to the interpretation of cases such as Dickson. Moreover, Dickson further illuminates the problems with interpreting the categories listed in the revocation statutes. By not including categories for writing words or making markings in the revocation by act statute, the legislators created too much risk for varied interpretations at the expense of Florida residents.

Methods of Will Revocation in Florida

Pursuant to Florida statutes, the revocation of a will can occur in three manners: revocation by writing,(7) revocation by physical act,(8) and revocation by operation of law.(9) Revocation by operation of law is not relevant to this article. Revocation by writing is controlled by F.S. [sections] 732.505, which provides that:

A will or codicil, or any part of either, is revoked:

(1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency exists.

(2) By a subsequent written will, codicil, or other writing declaring the revocation, if the same formalities required for the execution of wills are observed in the execution of the will, codicil, or other writing.(10)

Revocation by act is controlled by F.S. [sections] 732.506, which provides that "[a] will or codicil is revoked by the testator, or some other person in his presence and at his direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation."(11)

Formalities Governing Will Execution and Revocation

Judicial formalism governs the area of probate law with formalities guiding the testator's execution and revocation of a will. The will formalities serve as a protective device, guarding the interests of both the testator and beneficiaries. Under Florida statutory law, a testator must satisfy several requirements in order to execute a valid will. First, the testator must sign the will at its logical end.(12) Second, the testator must sign the will in the presence of two witnesses.(13) Third, the witnesses must sign in the presence of the testator and the presence of each other.(14) Some formalities have their origin in the English Statute of Frauds,(15) but attestation has its origin in the Wills Act of 1837.(16)

Statutory formalities...