Tl;dr = Upheld but kicked up to the Supremes
One of the first things you learn in the basic wills and trusts class in law school is that in order for a will to be valid, it has to adhere to certain formalities. If it doesn’t, then the will is invalid, and the estate passes by intestacy.
In Florida, the rules regarding the execution of wills are set forth in § 732.502 of the Florida Probate Code.
Under § 732.502(1), every will must:
- Be in writing
- Be signed at the end by the testator; or the testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction
- be signed or acknowledged in the presence of two attesting witnesses, who must sign in the presence of the testator, and in the presence of each other
Non-Florida Wills under § 732.502(2)
In addition, § 732.502(2) provides that “any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, is valid as a will in this state if it was valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with § 732.502(1) shall not be considered a holographic will.
This all only comes into play after you die. Generally, there isn’t any conflict over a will’s validity while you are alive, because it doesn’t come into effect until after you die. When we talk about whether or not a will was valid, it’s usually because someone is submitting it to probate. If the will was executed in Florida, then for it to be valid and accepted into probate, it has to be signed (or acknowledged) by the testator, in the presence of two witnesses, who are also in the presence of each other.
But what if the will was executed in East Kabookistan, which only requires one witness? Under §732.502(2), if the will was valid in the place it was executed at the time it was executed, then it will be valid in Florida too.
There is one major exception though. Holographic Wills.
What is a “holographic will”?
A holographic will is one that was written entirely by the testator. By “written” I mean pen (or pencil or crayon, etc.) to paper. Not typed. Not written by someone else. But actually written by the testator.
In jurisdictions that accept holographic wills, they do not have to be signed in the presence of any attesting witnesses. As long as the will is in the testator’s handwriting (and signed), then it will be valid – in places that accept holographic wills.
Florida will accept wills that were valid in other states at the time they were executed, except it still won’t accept holographic wills. The statute points out that if the will is signed in the presence of two witnesses who were in the presence of each other as per § 732.502(1), then it’s not a holographic will. It’s not the handwriting that’s the problem. It’s the lack of witnesses. (By the way, a nuncupative will is an oral will).
Is the ban against holographic wills unconstitutional?
Which brings us to Lee. V. Estate of Payne. (2nd DCA Sept 18, 2013). The case asks whether a holographic will that was admitted to probate and was valid in Colorado, can be admitted to probate in Florida as part of an ancillary administration.
We already know the answer to that. It’s not. Holographic wills are not valid in Florida. Everyone knows that. [pullquote2 quotes=”true” align=”right” cite=”FLORIDA CONSTITUTION, ARTICLE I, SECTION 2. Basic rights.”]All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.[/pullquote2]
But the proponent of the will made an interesting argument. They are arguing that the full faith and credit clause of the US Constitution mandates that Florida accept the will that is valid in Colorado. They also argue that the ban on holographic wills violates the Florida Constitution, particularly Article I, Section 2., which provides that all natural persona are equal before the law and have inalienable rights to acquire, possess, and protect property.
The 2nd DCA upheld the lower court’s decision rejecting the will. However, they also punted the main issue. They certified it for the Supreme Court (of Florida). Basically, they are asking the Florida Supreme Court to answer the following question for them:
“DO SECTIONS 732.502(2) AND 734.104(a) VIOLATE ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION BY CATEGORICALLY DEFEATING THE INTENT OF THE TESTATOR OF A HANDWRITTEN HOLOGRAPHIC WILL WITHOUT A RATIONAL RELATION TO THE FRAUD IT SEEKS TO CURE?”
The Florida Supreme Court doesn’t necessarily have to answer the question if they don’t want to. I’d be surprised if they did. But it’s certainly intriguing that an appellate court thinks that it’s an issue worth considering.