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The right to testamentary disposition of property is a right protected by the Florida Constitution.  To be valid under Florida law, a will must satisfy certain formalities: the will must be (1) in writing, (2) signed by the testator at the end of the will (or at the direction and presence of the testator), and (3) signed by two attesting witnesses in the presence of the testator and in the presence of each other.  However, Florida law will generally recognize a foreign will as valid if the will is valid under the laws of the state or country where the will was executed even if it does not strictly conform to the Florida formalities.  One major exception of this general rule is in the case of holographic wills.

A holographic will is a will that is hand-written by the testator and is not signed by witnesses.  Some states recognize holographic wills as valid under certain conditions particular to each state.  For example, Colorado will recognize a holographic will as valid if the signature and material portions of the document are in the testator’s handwriting.  Whereas, North Carolina will only recognize a holographic will as valid if the entire will is hand-written by the testator.

However, Florida law will not admit a holographic will into probate if it does not satisfy the required formalities under Florida law even if such will is valid in the state in which it was executed.  Florida law requires two witnesses to a will to assure the will’s authenticity and avoid fraud.  Under Florida law, holographic wills are not as reliable as wills that are executed in the presence of two witnesses.

In a recent case, a Florida district court refused to recognize a holographic will from Colorado that was valid under Colorado law.  Lee v. Estate of Payne, 38 Fla. L. Weekly D 1969 (Fla. 2d DCA Sept. 18, 2013).  In Lee, a testator, Mr. Payne, hand-wrote a will leaving real property located in Florida to his fiancée, Ms. Lee.  The will was executed in Colorado, a state that recognizes holographic wills as valid.  Because Mr. Payne’s will was not signed by two witnesses in the presence of each other, the Florida trial court refused to admit the will into probate.  Thus, Mr. Payne’s property located in Florida had to pass, through intestacy, to his estate’s only beneficiary: his minor daughter.  Ms. Lee challenged the Florida law as unconstitutional.  The district court held that it was bound by legal precedent to uphold the validity of the statute and affirm the trial court’s refusal to admit the will into probate.

The Lee case highlights the pitfalls that one may encounter due to differing state laws.  If a will includes real property located in Florida, or if the testator moves to Florida from another state, the best course of action is to have a Florida probate attorney verify that the will is valid and enforceable under Florida law.

Florida probate attorney Peter T. Mavrick represents clients in probate, trust, and guardianship litigation.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email:

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