'Rogue' wills gain credibility in some state courts, part two

We were writing a nice little period piece about a rogue will -- a will none but a few knew of that drastically changed the course of history. It could have been a handwritten document, too -- something dictated to a friend as the testator tossed his other will on the fire. Definitely the latter, which is quite as dramatic: The first will had given much to an ex-girlfriend, but the second had cut her out entirely and left everything to the testator's son and daughter. The issue, of course, was that the will had no witness signatures, and the children's names were misspelled.

In Florida, a valid will bears the signature of the testator and the signatures of two witnesses. In the testator's state, though, the legislature had recently passed a law that protected wills from challenges hinging on small procedural mistakes in form.

So, when the ex-girlfriend challenged the second will, the court had to consider the testator's intent at the time the "nonconforming" will was executed.

The friend who had transcribed the will told the court under oath that she had written word for word what the testator told her to write. When they were done, he looked at it and signed it. Another friend saw the testator sign the document. Again, neither friend signed the new will.

The daughter, whose name had been misspelled, said that her father had broken up with the girlfriend. She added that he was concerned the girlfriend would go to his house and take things.

The court found for the children. The statute, the court said, covered a will handwritten by a witness but not signed by any other witnesses, as long as there is clear and convincing evidence of testamentary intent.

It would be a tougher row to hoe in Florida. Burning the old will would have sufficed under the law as a revocation, but the lack of witness signatures would make the document problematic. Handwritten wills aren't a problem if they conform to the statutory requirements.

So, in Florida, a rogue will, even if delivered with a clap of thunder and a lightning bolt, may not be so easy to validate.

Source: Wall Street Journal, "California court gives 'rogue' wills more validity," Arden Dale, 06/20/2011