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Revocation of a Florida Will: Was the Testator’s Revocation of his or her Will Valid?

December 4, 2020 CSBB Blog

The Florida Probate Code provides three methods to revoke a will: (1) written instruction; (2) physical act; or, (3) operation of law. Strict compliance with the probate statutes is required in order to effectively revoke a will or codicil.

Revocation by Writing

Florida law does not allow for the partial revocation of a will in the absence of compliance with statutory requirements for revocation. See, e.g., Cioeta v. Estate of Linet, 850 So. 2d 562 (Fla. 4th DCA 2003).  Fla. Stat. § 732.505 states:

Revocation by writing— A will or codicil, or any part of either, is revoked:

(1) 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 extends only so far as the inconsistency.

(2) By subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.

The revocation may be declared invalid where a testator failed to observe the proper formalities for the execution of a will when the testator attempted to revoke his or her will. Cioeta, 850 So. 2d at 565.  When an “attempted partial revocation of a will or codicil is invalid, the will or codicil as originally written must be admitted to probate.” Id.

Revocation by Act

Fla. Stat. § 732.506 sets forth the statutory requirements for revoking a will or codicil by act, stating that:

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.

Some of the verbs enumerated in Fla. Stat. § 732.506 are self-explanatory. But what if a testator writes “delete” over certain paragraphs in the will? Such an example—implicating Fla. Stat. § 732.505 and Fla. Stat. § 732.506—was presented to the Florida District Court of Appeal for the Fifth District in Dahly v. Dahly, 866 So. 2d 745 (Fla. 5th DCA 2004). Dahly, provides as follows: 

Here, the father’s attempt to revoke portions of his will by lining through the name of the designated personal representative, placing the word “delete” over certain paragraphs in the will, and placing his signature with the words, “Please draw up a new will making all changes noted here” on a note in the adjoining margin failed to meet the statutory requirements for revocation.  To that end the father did not burn, tear, cancel, deface, obliterate, or destroy the will for the purpose of revocation.  Rather, he apparently attempted to modify some but not all off the terms of his existing will.  Additionally, and perhaps more importantly, the father did not sign the altered will at the end of the document, nor did he have any attesting witnesses to the altered document. Consequently, the probate court erred in concluding that the father’s actions constituted revocation. Id. (relying on Cieota, 850 So. 2d at 563).

Operation of Law

Florida law provides that if a testator gets divorced after executing a will providing for the testator’s spouse, unless the will or divorce judgment provide otherwise, the spouse is excluded under the will following the divorce. Fla. Stat. § 732.507(2) states:

Effect of subsequent marriage, birth, adoption, or dissolution of marriage.  Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage.  After the dissolution divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

If you wish to evaluate your rights under a will or codicil to determine whether it has been revoked or not, please call us at (561) 626-2101 or toll free (800) 226-1484 for a free consultation about your case.


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