Will modification

[joe19]

What is the name of your state (only U.S. law)? Florida

A will (state of Florida) was modified in writing by the "testator" in the presence of at least 4 witnesses (including the testator). The modification was signed and dated by four witnesses present including the testator. And the testator has died.

One of the beneficiaries (also a witness who signed the will modification) now refuses to accept those will changes. The will modification was not notarized. And the testator's signature is above the written modifications. In general is this modification legally binding?

 

[justalayman]

you can modify a will in every state in most situations. There is at least one exception to that though. If you would care to provide a bit of info, we might be able to answer your actual question.

 

[joe19]

you can modify a will in every state in most situations. There is at least one exception to that though. If you would care to provide a bit of info, we might be able to answer your actual question.

Thanks for that info.

 

[justalayman]

Now that we have an actual question, let's start with this:

732.502 Execution of wills.—Every will must be in writing and executed as follows:
(1)(a) Testator’s signature.—
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
(b) Witnesses.—The testator’s:
1. Signing, or
2. Acknowledgment:
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator’s name to it,
must be in the presence of at least two attesting witnesses.
(c) Witnesses’ signatures.—The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
(3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.
(4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.
(5) A codicil shall be executed with the same formalities as a will.
History.—s. 1, ch. 74-106; s. 21, ch. 75-220; s. 11, ch. 77-87; s. 961, ch. 97-102; s. 42, ch. 2001-226; s. 5, ch. 2003-154.
Note.—Created from former s. 731.07.

732.504 Who may witness.—
(1) Any person competent to be a witness may act as a witness to a will.
(2) A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.
History.—s. 1, ch. 74-106; s. 22, ch. 75-220; s. 1, ch. 77-174; s. 268, ch. 79-400.

so, is the witness contesting the will itself or their signature as witness?

 

[joe19]

Now that we have an actual question, let's start with this:

so, is the witness contesting the will itself or their signature as witness?

Thanks for the reply. The witness (not a lawyer) is contesting the "will modification" because they disagreed with the testator's changes. Though they disagreed that witness signed the "will modification". And yes its possible that the written document has some legal flaw (per the legal references you provided). For example the witness signatures are at the beginning of the document not at the end.

However all the witnesses were present, clearly heard what the testator said, and what was said was immediately written down (not verbatim but close enough) and signed by all the witnesses in each others presence immediately. (I know this because I am one of the witnesses).

 

[selhars]

The person who signed the modification -- who was there at the time -- heard everything -- and signed it (who MAY have had reservations at the time (and said so or not) -- but SIGNED ANYWAY.....is this person willing to LEGALLY challenge it....meaning get a lawyer and or file an objection with the state or whatever? OR, is he/she just (at this point) SAYING they're not going to accept the modification.

Do you need the person's signature for something now to get done? If not, you COULD proceed despite their objections -- and put the ball in their court as to what they're willing to do...ie. take it to the next level and officially challenge it.....which he/she may not do, because it might cost them time/money, and not just flapping their gums trying to renege on something they clearly had agreed to.

 

[joe19]

The person who signed the modification -- who was there at the time -- heard everything -- and signed it (who MAY have had reservations at the time (and said so or not) -- but SIGNED ANYWAY.....is this person willing to LEGALLY challenge it....meaning get a lawyer and or file an objection with the state or whatever? OR, is he/she just (at this point) SAYING they're not going to accept the modification.

Do you need the person's signature for something now to get done? If not, you COULD proceed despite their objections -- and put the ball in their court as to what they're willing to do...ie. take it to the next level and officially challenge it.....which he/she may not do, because it might cost them time/money, and not just flapping their gums trying to renege on something they clearly had agreed to.

Thanks for replying. Yes I need their signature to get things done. And they refuse (as of now) to agree that the will modifications are valid (whether formally legally accepted or informally making the changes). I don't know how to proceed to get the estate settled since this witness and myself must act together (legally) in settling the estate.

Neither of us have money to toss away in legal fees contesting this situation. But the lawyer the protesting witness wishes (us) to hire wants to settle the estate and ignore the will modification document.

 

[justalayman]

well, has the will been presented to probate court? Has a file even been opened at probate court? That would be the first step. Then, the will can be presented to the court to be accepted or rejected. If accepted, then the witness can always try to contest the will but from what you have posted, his argument is not valid. It doesn't matter if he agrees with what is in a will or not. It is the testators wishes being expressed. That means, if the will is accepted, then it will be used to direct the disposition of the testators estate.

why do the two of you have to act together? Unless you are co-executors, you generally do not have to act together for anything. If he is stalling the probate process, that is a reason to seek the courts intervention and possibly have him removed as co-exec.

 

[ecmst12]

Were any of the witnesses NOT beneficiaries to the will itself or any of the changes made?

 

[latigo]

Were any of the witnesses NOT beneficiaries to the will itself or any of the changes made?

. . . . I have never claimed to be a lawyer or law student. . . . .

Obviously your belated admission is not a hindrance to adding probate law to your would-be resume. Nor submitting the above imperceptive, naïve, water mudding, useless question.

If you had troubled to read justalyaman’s post (4/22/12) you might have learned that under Florida law - like many states, including mine - whether the witnesses to the making of a will are partial or impartial, interested or disinterested, biased or neutral, stand to gain, draw or lose is immaterial. [*]

The real concern is whether or not the attempted changes to the instrument complied with the necessary statutory formalities. And I suspect that they did not comply.

You really should be asking questions, not responding to them with myopic, misleading guesswork.

__________________________


[*] Florida Probate Code Estates and Trusts Chapter 732 Intestate Succession and Wills

“732.504 Who may witness —

(1) Any person competent to be a witness may act as a witness to a will.

(2) A will or codicil, or any part of either, is not invalid because
the will or codicil is signed by an interested witness.”

 

[ecmst12]

You'll note that I DID ask a question. Which has not yet been answered. And maybe it's immaterial according to statute, but it could still have the APPEARANCE of impropriety if ALL of the witnesses to this change stood to benefit from it. Perfectly reasonable question to ask. Please stop following me around and insulting me.

 

[latigo]

You'll note that I DID ask a question. Which has not yet been answered. And maybe it's immaterial according to statute, but it could still have the APPEARANCE of impropriety if ALL of the witnesses to this change stood to benefit from it. Perfectly reasonable question to ask. Please stop following me around and insulting me.

Appearance of impropriety? In other words, performing a legal function that is not only sanctioned but also required by law to give effect to another legal function could be seen as “indecent”? Sinful? “Wicked”? “ Lewd”? ?”Mistake”? “Blunder”? Or what?

And speaking of insults. How do you characterize your constant revilement of the American Judicial System with your tattooed postscripts? And equating it to a cash cow. I’m an officer of that system, missy I was raised in it, my father and mother, grandfather and great-grandfather were part of it AND I TAKE PERSONAL OFFENSE to your persistent deprecations.

 

[ecmst12]

You have a vendetta against me because you are offended by my SIGNATURE???? Well at least now I understand why.

Post for me a court case, in CIVIL court, where "justice" was part of the judgement. It's not something a judge can award in civil court. Even in criminal court, a judge can punish the guilty party, but they can't make it as if the crime never occurred, someone is still going to have been hurt by the crime. I was just tired of hearing people say that they don't want to sue for money, they want "justice", whatever that means....well, you can't get that from a lawsuit, all you can get is money. Maybe the money will make whatever injustice you suffered a little more bearable, and maybe it won't. But don't be decieved about what's going to happen at the end of it all.