If you are involved in a Florida probate proceeding, the admission of the will is one of the most important steps to a successful probate administration. However, the will that is admitted to probate must be the valid will of the testator (person who executed the will). In order for the will to be valid it cannot be revoked or changed by a codicil. A codicil is a document that amends or changes an existing Florida will. If a will is probated, and another will or codicil is found or alleged by an interested person to be superior to the probated will or there are allegations that the probated will was revoked, a will contest will most likely occur. If you have a will that you will like to revoke, there are several specific ways to make an effective revocation of the will. An proper revocation will allow for the possibility of a later will contest to be minimized and will make sure that the testator’s wishes are carried out.
A person cannot revoke a will through an oral statement in Florida. In re Estate of Carlton, 221 So. 2d 184 (Fla. 4th DCA 1969).
The revocation of a Florida will can occur in a few ways. First, under section 732.505(1), Florida Statutes, a Florida will is partially revoked “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 only extends so far as the inconsistency.” The other way a will can be revoked under section 732.505(2), Florida Statutes is when the subsequent will, codicil, or other document executed with the same formalities required for the execution of a will declares that all previous wills or codicils are revoked. If the new will or codicil does not state that it revokes all previous wills or codicils, then the court will use the different terms of the new will, but reconcile the old will or codicil with the new one. In conflicting provisions of a will, or two wills, the provision or will that was last written provision will prevail, if the court cannot harmonize the conflicting provisions. Jureski v. Scaduto, 882 So. 2d 1061 (Fla. 4th DCA 2004).
The second way that a will can be revoked is by a physical act. Revocation of Florida wills by physical acts is set out in section 732.506, Florida Statutes, which states, “A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.” The important part of section 732.506, Florida Statutes is for the destruction of the will to be at the testator’s direction and in the testator’s presence. Both parts need to occur in order for the revocation by physical act to be valid. For example, if a will is destroyed in a house fire, the will is not considered to be revoked because the physical damage was not at the testator’s direction. A will that is destroyed by accident is not revoked. However, if the testator burned his or her will with the intent to revoke it, then the revocation is valid under the statute.
If you have a will that you would like to change or revoke, the best thing to do is to talk to an attorney. An attorney will be able to advise you about the best way to revoke a will or make changes to it so that you can be sure that your wishes will be carried out properly and so that potential conflict is minimized. Contact us today to schedule a free consultation and estate plan review.
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