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Usually, people hire lawyers to have their Last Will and Testament prepared and executed as a protection against errors in writing their Will and against anyone challenging their decisions about who should get what after they’ve passed. Parents know their kids: getting a Will written may mean a lot less squabbling when the time comes to divide assets. Going to an attorney for estate planning is a great idea. We recommend it!

However, this doesn’t mean that everyone takes this precaution — and if they do, it doesn’t guarantee that an error won’t occur that will impact the viability of their written directive on how their property is to be distributed after they’re deceased.

What happens if there is a mistake? Sometimes, that error dooms the Will; mistakes can void a Will in Florida.

Pursuant to Florida law, if there is a mistake in drafting a Will, or a part of the Will – like a codicil – then the law can deem it void. This is according to Florida Statute 732.5165 which states:

A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

What does void mean under Florida law?

When a legal document in Florida is “void,” it means that it is given no legal respect whatsoever. It’s got no power. A void Will, filled with words, equals a blank piece of paper. Whether or not a Will is void must be decided by a judge, and a formal court ruling (order, judgment) will be filed in the probate records deeming the probated Will void and superseding any legal effect it once had.

Mistakes: “He just forgot!”

Not every mistake will destroy a Will, even if seems to be an unfair result. For instance, in the case of Azcunce v. Estate of Azcunce, Mr. Rene Azcunce went to his lawyer and made out a Will which included a trust; beneficiaries being listed as his wife (as “surviving spouse”) and his three kids, Lisette, Natalie, and Gabriel. A few months later, Mr. Azcunce added a codicil to the Will. Three years later, he added another one. Never did he consider that he might have any more kids who needed to be included there, and no language was written in either the Will or its codicils about any more children.

Within a year of Mr. Azcunce writing that first Will, however, his daughter Patricia was born. And six months after that second codicil, Mr. Azcunce died of a heart attack at the young age of 38. What about Patricia?

After the Will and its codicils were admitted to probate, a challenge to the Will was filed on behalf of the child Patricia for a statutory share of her father’s estate as a pretermitted child. Patricia lost.

The mistake in not adding Patricia’s name to his Will (or those codicils) did not void the Will. There was no ambiguity found in the Will documents to allow for witness testimony to explain things (parol evidence). Here, the court found that if the lawyer was found to have committed malpractice in not making sure that Rene Azcunce remembered to include his baby daughter in his Will, then that was not a mistake which would void the Will.   Azcunce v. Estate of Azcunce, 586 So.2d 1216 (Fla. 3d DCA 1991).

Mistakes: “It’s not what he really wanted!”

If a mistake is made in drafting a Will insofar as the reasons for executing its provisions, and not in the wording of the documents, then that mistake still may not be enough for cancellation or voiding of the Will. Forsythe v. Spielberger, 86 So.2d 427 (1956)

For example, in the case of York v. Smith, a man believed that his child was not really his own biological offspring and for this reason, did not include the boy in his Will. After he passed away, the child challenged the Will arguing his right to inherit and that his father had made a mistake in failing to name him as a beneficiary. They were father and son: if the father knew that, he would have included his son in the Will.

This did not matter. The court held that without proof that the father’s testamentary capacity had been crippled in some way, causing him to fail to include the child in his Will, nothing changed. Without evidence of some kind of “insane delusion” or other lack of testamentary capacity, the challenge to void the Will based upon the mistake was held to be insupportable. The will stood as written, the mistake did not void the Will. York v. Smith, 385 So. 2d 1110 (Fla. Dist. Ct. App. 1980).

When Will a Mistake Void the Will?

Both these cases seem very unfair, don’t they? Mistakes can void a Will under Florida probate law; however, as these two examples demonstrate, it is a difficult case to prove to a probate court judge. Florida law will give respect to the wishes of the decedent and the language of the Will is given great honor, even if it seems unfair and unjust to many. (See our earlier post discussing how probate judges are zealous in protecting what they believe to be the last wishes of the deceased as written in their Will.)

However, if the Will contest can provide evidence that there was something more involved in the situation that caused the mistake — something like fraud, or undue influence, or mental incapacity (what the York court called “insane delusion”) — then the mistake may result in a voided Will. We’ll be discussing these situations in future posts.

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