Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By James W. Mallonee
Holographic Wills are Wills that are written, signed by the testator, but not witnessed. Remember, that to have a Valid Will in Florida, your Will must be signed by the person who drew it up and signed by at least two witnesses who are over the age of 18. Florida does not recognize Holographic Wills regardless if the State where it was drawn up accepts such Wills, Florida will not.
The situation involving a Holographic Will came up in the case of Caveglia and Caveglia v Estate of Rory Ernest Macdowell. The problem involving a decedent’s Holographic Will and the problems it created originated in Louisianna by a Will dated May 15, 2014. The 2014 Will fulfilled all of the requirements for execution with two witnesses. In 2015, the decedent executed another Will (handwritten), but failed to have it witnessed (a holographic Will). In 2018, the decedent moved to Florida declaring it his homestead where he eventually died in 2019. The 2014 and 2015 Wills were discovered following the testator’s death. The Wills were presented to the Court as the Last Will and Testament of the decedent.
Apparently, Louisiana recognizes Holographic Wills, which is fine in Louisianna, except the decedent was now a resident of Florida. The argument became whether the Holographic Will revoked the 2014 Will which would render the decedent’s estate being intestate. Because Holographic Wills are not recognized in Florida, the estate reverted to the 2014 Will by ignoring the Holographic Will. Fortunately, the 2014 Will was not revoked or lost following the creation of the 2015 Holographic replacement. The 2014 Will was not lost and was now submitted as the Last Will and Testament of the decedent.
The argument became that if the Holographic Will is recognized in Louisianna can’t the court recognize the Will under Louisianna law. The answer is that it may have been a possibility, but the maker of the Will was now a domiciliary resident of Florida with no ties to Louisianna other than children and relatives who continued to live in such State. Moreover, it is the time of death where the validity of a Will is determined. Thus, the 2015 Will was a nullity and invalid under Florida law even though it was signed in Louisianna.
The real determination in this case is at the time of a person’s death. The decedent was no longer a resident of Louisianna. The fact that the decedent died in Florida and was domiciled in Florida at their death made the previous Wills executed in Louisianna subject to Florida law.
As a result, the 2015 Will was completely invalid and not recognized. Had the decedent continued to make Louisianna their primary residence the outcome in this case may have been different.
The end result in this case is that the 2014 Will carries the day in terms of distribution of the decedent’s assets. Had the 2014 Will been revoked by tearing it up or not found it is likely that the estate would have been distributed according to Florida’s intestate statutes.
This is a good case to remember when amending your Will with a new one, never throw away your old will just in case the State you move to has some quirky law that might revoke your newly prepared out of State will. In addition, it is always a good idea to have a licensed attorney review or prepare your Will in the State where you move to assure it is prepared and executed according to that State’s law. If you have moved to Florida and made it your permanent residence, contact the attorney of your choice and have your out of State testamentary devices reviewed to be sure it remains valid under Florida law.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223
871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223
