Wills & Substantial Compliance

[flcouple]

Florida location
Uncle died with a hand written Will. Problem is when he had witnessed by two parties.
The first signed BEFORE the second signer arrived.
First signer witnessed the 2nd signer, BUT 2nd signer did NOT see 1st party actually sign the will. 1st signed said "I already signed" and watched 2nd party sign.
Now attorney for the estate says "Bad Will" so uncle died in testate.
Is there any chance we can use "Substantial Compliance"
This is a Florida probate case.

 

[Dandy Don]

Are the witnesses related to the decedent or not?

What is the value of this estate?

Are the beneficiaries related to the decedent, and if so, how? Are YOU beneficiaries?

Is the decedent's spouse still living?

What has your attorney told you about this situation already?

Has probate officially begun--have there been any official hearings in probate court about this will already?

 

[flcouple]

One Witness who is also named as PR is a nephew.
Other Witness is a male nurse and not related.

Estate is at about $1.2MM

All Beneficiaries named in the codicil are related as niece or nephews.

One attorney says this codicil is flawed and therefore has little to no chance of getting past the probate judge.

Spouce (who married the uncle 20 months ago) died two months after uncle.

Probate has begun but no hearings to date (7/19/07)

Attorney for the estate of the spouce says codicil is no good. Uncle died in testate so EVERYTHING passed thru to her estate, which goes to her estranged brother who never even met the uncle and had not talked to his sister (the spouce) in years.

Any thoughts on where this can go?

 

[Dandy Don]

Your original posting mentioned nothing about a codicil. What specifically does the codicil state (what change is it making)? Do your uncle's initials appear directly after the codicil?

Did the witnesses notice the codicil or were they assuming they were witnessing the whole will in its entirety?

You can't just automatically accept the estate attorney's position that the "codicil is flawed/no good" because he may or may not be biased as to what outcome he wants to happen and he may or may not be telling you the truth.

Take a copy of the will to at least 2 other probate attorneys (preferably attorneys who have had experience in litigation involving contested wills/codicils) to get their opinion about whether the codicil is flawed or not.

DANDY DON IN OKLAHOMA ([email protected])

 

[seniorjudge]

Florida location
Uncle died with a hand written Will. Problem is when he had witnessed by two parties.
The first signed BEFORE the second signer arrived.
First signer witnessed the 2nd signer, BUT 2nd signer did NOT see 1st party actually sign the will. 1st signed said "I already signed" and watched 2nd party sign.
Now attorney for the estate says "Bad Will" so uncle died in testate.
Is there any chance we can use "Substantial Compliance"
This is a Florida probate case.

...
3. Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses.
....

http://www.floridabar.org/tfb/TFBConsum.nsf/48e76203493b82ad852567090070c9b9/a0091ab18d4875d085256b2f006c5b75?OpenDocument

http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0732/part05.htm&StatuteYear=2002&Title=->2002->Chapter 732->Part V

 

[flcouple]

The codicil was done in the hospital, the night before the uncle died.
Yes, I would beniifit as I was named PR and a benificiery slong with several other relatives.
The OTHER Witness would NOT Benifit at all as he was just the male nurse attending to my uncles needs.

 

[flcouple]

I have been told that FL probate law is rather narrow.
If a Will does NOT meet ALL the requirements it's ruled that there is NO WILL.
I am trying to find if we can get the codicil admitted with the theory of Substantial Compliance.
Ever see this work in Probate?

 

[Dandy Don]

You still have not stated exactly what the codicil says, which makes one believe that whoever wrote the codicil was trying to add their names as beneficiaries at the last minute.
The plan would have worked better if you all had gotten the man to an attorney to have an official legal will drafted and typed and you still might have a valid case, depending on what the codicil actually says and whether the man's initials are on there to approve it or not.

There is probably no Florida attorney looking at this message board, so you better start consulting with a local attorney who can actually review the document you have since we can't see it here.

DANDY DON IN OKLAHOMA ([email protected]))

 

[Dandy Don]

Post your question on another free legal advice website called www.lawguru.com and if you mention what city and county the estate is being probated in, you are sure to get interested responses from probate/trust attorneys in that area, some of whom may be interested in taking on and/or evaluating your case.

DANDY DON IN OKLAHOMA ([email protected])