Sometimes when learning a new subject, it is best to begin with a few terms and definitions.
- A Last Will and Testament (or “will”), discussed under Fla. Stat. §§ 732.501 – 932.901 (2014), is a legal document which usually details a person’s wishes as to who receives his or her possessions upon his or her death.
- A testator is the person creating the will.
- A beneficiary is a person receiving something from the testator in the will.
- The executor, or personal representative, is the person appointed by the testator (and subsequently the probate judge) to administer the provisions in the will.
- A codicil is a supplement to the will which changes, explains or adds to the will.
Creating a Will in Florida
In Florida, any person of sound mind and who is either over 18 years of age or an emancipated minor may make a will. While no particular form of words is necessary to make the will valid, there are formalities required by law. For instance, a valid will must be in writing, signed at the end by the testator. If the testator is unable to sign, it can be signed by some other person in the testator’s presence at his or her direction. The testator’s signature must be witnessed by at least two people. Any person, even a beneficiary, can serve as a witness to a will. All three, the testator and the two witnesses, must all sign the document in each others’ presence. Signing the will before a notary will strengthen the document if anyone ever challenges it.
Modifying and Revoking a Will
A will can be revoked by the testator or at the testator’s direction by some other person in the testator’s presence by intentionally and purposefully burning, tearing, canceling, defacing, or obliterating the document. A will can be changed, amended, modified or explained by a document called a codicil.
Contesting a Will
For someone to contest a will, the testator must be deceased. Most often people seek to contest a will because of undue influence. However, a will, part of a will, or revocation (or taking back) of a will is void if the execution or revocation is procured (or obtained) by fraud, duress, mistake, or undue influence. There are several factors that the court will consider when determining if a beneficiary has actively procured a will:
(a) presence of the beneficiary at the execution of the will;
(b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
(c) recommendation by the beneficiary of an attorney to draw the will;
(d) knowledge of the contents of the will by the beneficiary prior to execution;
(e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
(f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.
It is usually lawful and not uncommon for the personal representative to also be a beneficiary.
Creating a Last Will and Testament is often an emotional and complicated process. Most people create a will with the intention of easing the grief of their loved ones rather than increasing it. For assistance in drafting your Last Will and Testament, please contact the attorneys at Fletcher & Phillips at 904-353-7733.