The Void in Florida’s Will Revocation Statutes
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. §732.505, relating to revocation by writing, or F.S. §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. §732.505, under F.S. §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. §732.505, nor does it appear at first glance to be a revocation by physical act as required by F.S. §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. §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. 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. §732.505, which provides that:
A will or codicil, or any part of either, is revoked:
(1) 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) 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. §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 also govern the revocation of wills. The courts take measures to avoid disturbing the statutes governing will formalities, and the courts often narrowly interpret revocation statutes.17
Like the formalities necessary for the execution of wills, the formalities necessary for the revocation of wills originate from English law. Revocation formalities existed as early as the enactment of the English Statute of Frauds.18 The influence of the English Statute of Frauds is still apparent today in the revocation statutes throughout the United States. For example, every state has revocation of will statutes that provide for revocation by act. Revocation by act derives from the English Statute of Frauds and the Statute of Wills.19 In addition, Florida’s revocation by act statute employs much of the same language as the English Statute of Frauds, namely burning, tearing, canceling, and obliterating.20 As illustrated by Dickson, the blurred distinction between Florida’s revocation statutes affects a court’s evaluation of a testator’s actions. The Dickson decision highlights concerns of courts and attorneys about classifying writings on a will and determining how strictly to construe statutory formalities.
The purpose of these statutory formalities for both the execution and revocation of wills is to guide the court in its interpretation of revocation cases.21 A testator’s adherence to ritual formalities affirms the gravity of the testator’s actions.22 For example, the ceremonial signature requirement adds validity to the will’s existence as a complete document.23 In addition to the ritual formalities, wills also have an evidentiary purpose.24 Despite its contents, “[the will] has the advantage of preserving in permanent form the language of the testator to show his intent.”
25 Additionally, the signature requirement serves as evidence confirming the testator’s identity.26
Protective formalities, derived from the Statute of Frauds, also appear in current statutes.27 Due to the influence and prevalence of probate attorneys in will drafting, the need for protective formalities has dwindled.28 However, these strict formalities still function as a preventative measure against mistake, misrepresentation, undue influence, and fraud.29
Interplay of Testator’s Intent and Revocation Statutes
In conjunction with the testator’s compliance with statutory formalities, the testator’s intent plays a vital role in the court’s interpretation. The will serves as a vehicle for the testator to express his or her wishes at death.30 Additionally, the court serves as the testator’s voice, interpreting and construing the testator’s intentions through the probate process.31 Historically, the courts focused on the intent of the testator when determining whether sufficient revocation occurred. Before the enactment of the English Statute of Frauds, the testator’s intent was not dispositive. Instead, a testator’s acts or declarations sufficiently prevented a will’s admission to probate.32 The enactment of the Statute of Frauds in the United States served to “prevent abuses in attempts to defeat valid wills” and provided for revocation by certain physical acts including burning, canceling, tearing, obliterating, and revocation by subsequent writing.33
Despite the enactment of preventative statutes, there is still potential for injustice. In the majority of cases, no conclusive evidence of the testator’s intent exists.34 The intent underlying the testator’s act is not always apparent by looking at the four corners of the will. A potential for fraud may occur because the courts cannot always determine whether the testator intended to revoke a section, a part, or the entire will.
Parol evidence reduces speculation surrounding a testator’s intent. The Dickson court addressed the problem of speculation and cited an additional need for parol and other extrinsic evidence to determine the testator’s intent.35 The court reasoned that “[f]rom such parol evidence, as well as from all other circumstances connected with the alleged revocation, it would be determined whether a revocation had taken place or not.”36 However, the court also held that effective revocation of a valid will requires a “joint operation of act and intention to revoke.”37
Analysis of Florida’s Will Revocation Statutes
After the court determines the testator’s compliance with statutory formalities and the presence of requisite intent, the court decides which statute applies. Paragraph one of F.S. §732.505 concerns the inconsistencies in subsequent wills or codicils that occur when the subsequent writings do not expressly revoke the original will or codicil, and in such event “revocation extends only so far as the inconsistency exists.”38 Paragraph two of F.S. §732.505 recognizes the validity of subsequent wills or codicils that declare the will is revoked if formalities are met.39 However, for the revocation to be valid under paragraph two of F.S. §732.505, the new draft must meet all stipulated will execution formalities.40
One important aspect of F.S. §732.505 is its provision for partial revocation. Unlike F.S. §732.506, which does not allow partial revocation, the courts construe the phrase, “any part of either,” to permit partial revocation by writing.41 The Uniform Probate Code (UPC)42 and some jurisdictions permit partial revocation by act.43 allowing partial revocation by physical act, Florida could avoid the harsh consequences of either admitting or denying a will to probate when the evidence does not conclusively result in a total revocation.
Placement of Markings or Words on the Will
The courts also look at the location of the writing on the will.44 In Dickson, the writing and encircling of the word “void” was on the notarial seal located on the self-proof affidavit.45 The Dickson court held that “the fact that these marks were made on the page labeled self-proof affidavit does not preclude a finding that a revocation of the entire will occurred.”46 The Dickson court declined to adopt the view espoused by Texas courts that the self-proof affidavit is evidentiary and not part of the will.47 Instead, the Dickson court adopted the reasoning that “self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts.”48
In addition to writings on the self-proof affidavit, another issue arises with respect to writing on the margins of a will. An Ohio court held that the testatrix’s writing on a margin of the will was not revocation.49 The court reasoned that writing on the margin did not sufficiently constitute a cancellation under Ohio’s revocation by act statute.50 The 1990 changes to the UPC attempt to remedy this problem by providing that the act of revocation does not require touching of dispositive sections of the will.51 In other words, regardless of where markings appear, the court may deem them a revocation.
Application of Florida’s Will Revocation Statutes
Because partial revocation by physical act is not an option in Florida, the Dickson court could either admit the entire will to probate or revoke the entire will. In analyzing the trial court’s decision, the Dickson court reasoned that the revocation lacked formality.52 The court correctly determined that the testator’s writing and encircling of the word “void” on the self-proof affidavit did not constitute revocation by writing pursuant to F.S. §732.505.53 Instead, the court chose to classify the writing as a revocation by act pursuant to F.S. §732.506.54
Courts and attorneys face several problems when applying F.S. §732.506. An initial problem when applying F.S. §732.506 is the categorization of ways to revoke a will. The legislature created a list of specific ways to revoke a will by act including: burning, tearing, canceling, defacing, obliterating, and destroying.55 However, the legislature failed to include a category for markings. Yet, the Dickson court held that the testator’s markings fell within F.S. §732.506 as an obliteration.56 Other courts have stated that it is inadequate to summarily classify markings on a will as an obliteration.57 Considering there is no definitive category for markings, the Dickson court’s analysis is questionable.
A second problem is the lack of a standard dictating what severity of action amounts to the revocation of a will. Since the Florida statute does not include “writing” or “marking” as permitted acts, the statute is silent as to the quantity of writings or markings necessary for revocation. Other courts have held that a testator’s red pencil interlineations through every word and signature, the decedent’s initials and the word “obliterated” did not constitute revocation.58 Writing on the seal is not an action to the degree of severity as ink markings obliterating signatures. Interestingly, the UPC attempts to remedy the degree problem by providing that the physical act does not need to deface printed words on the will or codicil.59
A third problem arises when the testator’s act does not directly fall within one of the statutory categories.While the Dickson court interpreted the testator’s act as an obliteration,60 other courts categorize the writing of the word “void” as a cancellation.
For example, the Alabama Supreme Court compared the word “void” to the word “cancel,” reasoning that the two terms were synonymous.61 Furthermore, the Alabama Supreme Court reasoned that by writing the words “annulled” and “void” on the will, the testator complied with Alabama’s revocation by physical act statute.62
However, the Alabama Supreme Court’s analysis is also not definitive. Contrary to the Alabama Supreme Court, a New York court opined that “[b]y definition, there can be no such thing as a cancellation of an instrument, either as a physical fact or as a legal inference, unless the instrument itself is in some form defaced or obliterated.”63
Conclusion
At the risk of attempting to be too clever, one might characterize Florida’s will revocation statutes as having a “void.” However, it is apparent that the Florida Legislature did not anticipate and did not provide for situations such as the one arising in Dickson. It is also apparent that the testator’s act of writing and encircling the word “void” on the notarial seal located on the self-proof affidavit does not clearly fall within the realm of the statutory revocation by act. Finally, it is apparent that the statute is susceptible of contradictory interpretation.
Only a few changes would be required to remedy the statutory deficiencies of classification, degree and categorization of markings. First, if Florida approves the Dickson result, it should include “marking” or “writing” in addition to the other six categories of F.S. §732.506. Then, similar to the UPC approach, the statute should address the degree or severity of markings or writings necessary for revocation. Finally, the statute should address the issue of placement of the marking or writing, and specifically whether marking or writing on the margin or back of a will or codicil constitutes revocation. making these changes, the Florida Legislature will eliminate ambiguity surrounding interpretation of revocation by act, thus making Florida probate more efficient and reducing confusion presently confronted by courts, attorneys, and residents. q
1 In re Dickson, 590 So. 2d 471, 472 (Fla. 3d D.C.A. 1991).
2 Id.
3 Id.
4 Id.
5 Id. at 474.
6 Id. at 472.
7 Fla. Stat. §732.505 (1995).
8 Fla. Stat. §732.506 (1995).
9 Fla. Stat. §732.507 (1995).
10 Fla. Stat. §732.505 (1995).
11 Fla. Stat. §732.506 (1995).
12 Fla. Stat. §732.502 (1)(a)(1) (1995).
13 Fla. Stat. §732.502(1)(c) (1995).
14 Id. §732.502(1)(c).
15 Elias Clark et al., Gratuitous Transfers 267 (3d ed. 1985).
16 Id. at 291.
17 Estate of Eglee, 383 A.2d 586, 588 (R.I. 1978). The Eglee court reasoned that “[w]e must construe statutes, not redraft them.” Id. (citing Moretti v. Div. of Intoxicating Beverages, 5 A.2d 288 (R.I. 1939)).
18 See Melville M. Bigelow, The Law Of Wills 117 (1898).
19 Sheldon F. Kurtz et al., Wills, Trusts & Estates 209 (1988).
20 See Fla. Stat. §732.506 (1995).
21 Clark et al., supra note 15, at 267.
22 Id. at 267.
23 Id. at 267.
24 Id. at 267.
25 Id. at 267.
26 Id. at 267.
27 Id. at 268.
28 Id. at 269.
29 Eglee, 383 A.2d at 588.
30 C. Douglas Miller, Will Formality, Judicial Formalism, and Legislation Reform: An Examination of the New Uniform Probate Code “Harmless Error” Rule and the Movement Toward Amorphism, 43 Fla. L. Rev. 176 (1991).
31 Id.
32 Boddy v. Boddy, 420 P.2d 301, 302 (N.M. 1966).
33 Id. (citing Statute of Frauds, 1676, 29 Car. 2, ch. 3).
34 Thomas E. Atkinson, Law of Wills 443 (2d ed. 1953).
35 Dickson, 590 So. 2d at 473.
36 Id.
37 Id. at 474 (citing Stewart v. Johnson, 194 So. 869 (Fla. 1940)).
38 Fla. Stat. §732.505 (1995).
39 Id. §732.505.
40 Fla. Stat. §732.502 (1995).
41 In re Shifflet, 170 So. 2d 96, 98 (Fla. 3d D.C.A. 1964).
42 Unif. Prob. Code §2-507 (1990).
43 2 Jeffery A. Schoenblum, Bowe-Parker Revision of Page on the Law of Wills § 21.19 (Cum. Supp. 1996). Eleven states provide for partial revocation by act. Id.
44 In re Will of Lewis, 360 N.Y.S.2d 761, 762 (N.Y. Surr. Ct. 1974).
45 Dickson, 590 So. 2d at 472.
46 Id.
47 Id. at 473 (citing In re Estate of Charry, 359 So. 2d 544 (Fla. 4th D.C.A. 1978)).
48 Id. (citing In re Estate of Charry, 359 So. 2d 544 (Fla. 4th D.C.A. 1978)).
49 Kronauge v. Stoecklein, 293 N.E.2d 320, 321 (Ohio App. 1972).
50 Id.
51 Robert Whitman, Revocation and Revival: An Analysis of the 1990 Revision of the Uniform Probate Code and Suggestions for the Future, 55 Alb. L. Rev. 1035, 1048 (1992).
52 Dickson, 590 So. 2d at 472.
53 Id. at 473.
54 Id.
55 Fla. Stat. §732.506 (1995).
56 Dickson, 590 So. 2d at 473.
57 In re Collins, 458 N.Y.S.2d 987 (N.Y. Surr. Ct. 1972).
58 See Eglee, 383 A.2d at 588.
59 Unif. Prob. Code §2-507 (1990).
60 Dickson, 590 So. 2d at 473.
61 Franklin v. Bogue, 17 So. 2d 405 (Ala. 1944).
62 Id. at 408.
63 Lewis, 360 N.Y.S.2d at 767 (citing In re Akers, 77 N.Y.S. 643 (1902), aff’d., 66 N.E. 1103 (N.Y. 1903)).
Stacy L. Ossin will join the Coral Gables law firm of Packman, Neuwahl & Rosenberg as an associate in August. She received her J.D. in 1997 and her B.S., with highest honors, in public relations in 1994 from the University of Florida. Ms. Ossin will concentrate her practice in estate planning, transaction planning, and taxation (domestic and international).
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Robert W. Goldman, chair, and David H. Simmons and Brian Felcoski, editors.
