Invalid Testaments: Florida Holographic & Nuncupative Wills

For obvious reasons, there are extremely strict laws and regulations surrounding the creation of an individual’s Last Will & Testament. Wills provide significant incentive for fraudulent behavior and coercion on the part of those who stand to benefit from inheritances provided in the will.

The law seeks to ensure that that the wishes of the will’s testator (person who created the will) are appropriately and legally carried out. Thus, state statutes including those in Florida explicitly define the actions that must take place for a will to be considered valid and executable in probate court following the testator’s death.

Florida Statute 732.502 states that, for a will to be valid, it must:

  • Be in writing
  • Include the testator’s signature at the end or include the name of the testator written at the end of the document by another person who was in the presence of the testator and directed by the testator
  • Include signatures of two witnesses attesting to the testator signing the document (or to another individual writing the name of the testator on his or her behalf, as mentioned above).
  • While not a requirement, the will should also contain a self-proving affidavit.  The will and accompanying self proving affidavit need to be signed by the testator and in the presence of two attesting witnesses and in the presence of a notary public. The self proving affidavit eliminates the need of having to bring the witnesses of the will to court to file sign oath of witness to will upon the death of the testator.

Generally speaking, as long as the testator was of sound mind and these requirements are fulfilled, a will should be considered valid. Except, that is, in the case of holographic or nuncupative wills. These two types of wills, while allowable in some jurisdictions throughout the country, are expressly forbidden in Florida in basically all circumstances.

Holographic Will

A holographic will is a last will and testament that is entirely handwritten by the testator without any witnesses. Just because a person writes down his or her wishes and signs it, does not mean the document will be accepted in probate court. This is true even if the testator drafted the will in a jurisdiction where holographic wills are acceptable and then moved to Florida. The only time a will that is completely handwritten by the testator will be acceptable in Florida probate court is if it completely fulfills the requirements set forth in F.S. 732.502 detailed above, including the two witness requirement.

Nuncupative Will

The fact that nuncupative wills are not accepted in Florida demonstrates the importance of engaging in estate planning long before you have a pressing need to legally make your testamentary wishes known. A nuncupative will is a verbal last will and testament that is made by a terminal individual before their death in front of witnesses. Once again, some jurisdictions in the US allow for such “deathbed” wills, but Florida expressly forbids them in all cases. While nuncupative wills may fulfill Florida’s witness requirements for a valid will, it does not fulfill the necessity that they be written.

Whether you want to ensure your will is fully executable and that it will effectively convey your wishes, or you wish to challenge a will that you believe to be illegal or invalid for any reason, please do not hesitate to contact Luis E. Barreto & Associates today!

Share this on...Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Email this to someone

Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.