What Actions Qualify as “Revoking” a Florida Will?

A last will and testament only becomes “final” when the testator dies. While they are still alive and legally competent, they can revoke their will at any time. The most common method of revocation is by writing. Typically, when someone executes a new will, it includes language expressly revoking any previous wills.

But Florida law also allows a will to be revoked by “act.” Specifically, the testator may revoke their own will by “burning, tearing, canceling, defacing, obliterating, or destroying” the document with the intent of revoking it. In the case of an electronic will, revocation may be accomplished by “deleting, canceling, rendering unreadable, or obliterating” the file, again with the intent of revocation.

Marking Up a Will Is Not the Same as Revoking It

As with executing a will, revoking a will requires strict compliance with Florida law. And there have been cases in Florida where a judge has found a testator’s actions were insufficient to meet the requirements for revoking their own wills.

For example, in a 2002 case, Taft v. Zack, the Florida Second District Court of Appeal reversed a probate judge’s holding that a decedent had revoked her will by act. In this case, the decedent executed a will in January 2000, about seven months before her death. The decedent’s children contested the will. They argued their mother had revoked her will, specifically by crossing out two sentences referring to her husband. Next to each marking was the word “VOID” and the decedent’s initials.

The Second District said that, at best, the decedent’s markings suggested “an attempt to partially revoke” the will. But Florida does not allow for a partial revocation of a will absent compliance with the statutory requirements for revocation. And the will “was otherwise unmarked in any manner to indicate that the decedent intended to completely revoke the will.” So the appellate court held the original will should be admitted to probate.

In another case from 2004, Dahly v. Dahly, the Fifth District Court of Appeal similarly held that a “marked up” will that purported to delete certain paragraphs did not constitute a valid revocation by act under Florida law. In this case, the decedent marked up the will with apparent instructions for his attorney to draft a new will. But the Fifth District said the decedent never took any of the specific actions listed in the revocation statute, such as burning or tearing the original will, which would have clearly demonstrated his intent to revoke the document.

Contact a Florida Estate Litigation Attorney Today

If you are involved in a legal dispute over a potentially revoked will, it is essential to seek advice and representation from a qualified attorney. If you need to speak with an experienced Pompano Beach estate and trust litigation attorney, contact the offices of Mark R. Manceri, P.A., today to schedule an initial consultation.

Sources:

flsenate.gov/Laws/Statutes/2023/0732.506

scholar.google.com/scholar_case?case=5434784155097052673

scholar.google.com/scholar_case?case=4608723096168600770