I had a phone call some time ago, from a potential client. He was asking about what he needed to draft a will. I explained to him the requirements for a will in Florida. He said he had videotaped his will and he had explained what he wanted. I gently explained, again, the requirements for a will in Florida at which point he became argumentative and said that a videotape should be good enough. He hung up and didn’t call back.
And, from time to time, I will either have a potential client bring in their ‘old will’, or sometimes I will have a child of someone who died bring in their “will”; and it is a piece of paper setting out who gets what, signed at the end, and notarized. If the person whose will it is is still alive, I explain that they need something more than that. If the ‘will’ belongs to someone who has died, I have to break the bad news that no, this is not a will under Florida law; that while it might be written and signed and notarized, Florida requires two witnesses to a will; and those witnesses must have signed in front of each other and signed in front of the Testator, or the person whose will it is. A notary can act as a witness; but if the only witness is the notary, then it is simply not a will.
The Florida Statute (732.502) on validity of a will is here:
It is fairly straightforward; it has to be in writing, it has to be signed at the end by the person whose will it is, or signed by someone at their direction, it has to be signed by two witnesses who signed in front of each other and signed in front of the testator. That’s it. It does not have to be dated; it does not have to be notarized, Florida allows someone who inherits under the will to be one of the witnesses
So long as the person is competent to be a witness.
Sometimes there is a question of whether a will executed out of state is valid in Florida. Whether or not it is is going to depend upon three things:
1) Whether the person was a resident of that state; if the person was a resident of that state then Florida will look to that states law to determine if the will is valid. If the person was a resident of Florida who happened to execute the will out of state, then Florida will expect the will to comply with Florida law.
2) Whether it is a holographic or nuncupative will; a holographic will is a will that is entirely in the testators own handwriting; some states will recognize nuncupative wills even if the will is not witnessed; Florida does not, even if it would be recognized out of state. A nuncupative will is an ‘oral’ will, usually in front of witnesses. Some states will recognize oral wills for some purposes; Florida does not. If it’s not written, it’s not a will as far as Florida is concerned. Even if it’s videotaped.
3) Whether the will complies with the law of the state in which it was executed at the time it was executed.
If it meets all of the above criteria, that is, in writing, by someone who was a resident of that state at the time of the will, and being witnessed, and otherwise complying with the law of the state at the time, then Florida should recognize it as a will.
If you have a question about the validity of a will in The Villages, Florida or the surrounding communities of Belleview, Summerfield, Lady Lake, Oxford, Fruitland Park, Leesburg or Wildwood, please feel free to call my office in Summerfield. If you need a will in any of those communities, please call my law office.
