Florida/Georgia Personal Injury & Workers Compensation

...On appeal, the district court reversed the circuit court and held that destroying an unsigned copy of a will or codicil, even one containing a photo image of the original signature, is insufficient to revoke the original *990 will or codicil under section 732.506, Florida Statutes (1989)....

...Additionally, it is well settled that strict compliance with the will statutes is required in order to effectuate a revocation of a will or codicil. In re Estate of Dickson, 590 So.2d 471, 472 (Fla. 3d DCA 1991); In re Estate of Bancker, 232 So.2d 431, 433 (Fla. 4th DCA), cert. denied, 238 So.2d 111 (Fla. 1970). Section 732.506 provides the procedure for revoking a will or codicil by physical act. Section 732.506 provides that [a] will or codicil is revoked by the testator, or by some other person in [the testator's] presence and at [the testator's] direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. Thus, in order for a testator to effectively revoke a codicil, there must be a "joint operation of act and intention to revoke." In re Dickson, 590 So.2d at 473; Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940). Creaig argues that section 732.506 does not specifically require the destruction of the original codicil, but allows a testator to revoke a will or codicil by intentionally destroying a copy. She focuses on the language of section 732.506 that the testator revokes the will or codicil by "destroying it with the intent, and for the purpose, of revocation." (Emphasis added)....

...odicil. Thus, she concludes that because the testator in the instant case intentionally revoked the codicil and destroyed a "correct copy," the testator effectively revoked the codicil. We reject Creaig's argument and find that the plain language of section 732.506 requires the intentional destruction of the original will or codicil in order to effectuate a revocation. Section 732.506, which describes the manner for revoking a will or codicil by a physical act, uses the pronoun "it" in reference to the terms "will or codicil" contained therein....

...was ineffective. The next issue we address is whether a constructive trust should properly be imposed when a testator fails to effectively revoke a codicil because of a mistake of fact which prevented the testator from fulfilling the requirements of section 732.506....

...The effect of the majority opinion is to accomplish the result of a revoked codicil. While I quarrel with the route it took, the majority reaches the correct destination and I therefore concur in the result. BARKETT, C.J., and KOGAN, J., concur. NOTES [1] We note the district court's opinion inadvertently cited section 732.506, Florida Statutes (1975).

...of the decedent, executed February 2, 1981, to probate. The effect of the order was also to deny a petition for revocation of probate brought by the decedent's natural daughter who claimed that the decedent had revoked the will by cancellation under section 732.506, Florida Statutes (1989)....

...Thus, the final page of the will appears as reproduced in the appendix at the end of this opinion. The facts as related above create two issues for our consideration. First, we must consider whether the testator performed sufficient acts of cancellation or obliteration to fall within the rubric of section 732.506. Second, we must determine the effect of the physical act's location solely upon the will's self-proof page. We conclude that the physical acts may be sufficient to meet the requirements of section 732.506, providing appellants prove the necessary accompanying intent to revoke....

...as the inconsistency exists. (2) By a subsequent written will, codicil, or other writing declaring the revocation, *473 if the same formalities required for the execution of wills are observed in the execution of the will, codicil, or other writing. Section 732.506 provides for revocation by act, stating: A will or codicil is revoked by the testator, or some other person in his presence and at his direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation....

...As appellants themselves concede, the instant revocation fails under section 732.505 because the formalities necessary for execution were not followed. See In re Estate of Shifflet, 170 So.2d 96 (Fla. 3d DCA 1964). Whether the attempted revocation also fails under section 732.506 as acts performed with the intent and purpose of revocation is clearly a question of fact....

...Reversed and remanded. JORGENSON, J., concurs. *475 APPENDIX *476 SCHWARTZ, Chief Judge (dissenting in part). There is no dispute that Dickson made the markings in question on his will. As shown by the majority opinion, they objectively invoke the provisions of section 732.506, Florida Statutes (1989)....

...Hence, I see no purpose to the further factual consideration of the issue the court requires. I would instead reverse the judgment below outright and remand the cause with directions to revoke the probate of the will and order that the estate pass by intestacy. NOTES [1] 732.506 Revocation by act....

...The stipulated facts before the court made *791 it clear that the decedent had intended to revoke the codicil and reinstate Craig as the residuary beneficiary. The supreme court held that although what the testator destroyed was an exact copy of the original codicil, believing it to be the original, the requirements of section 732.506 had not been complied with, making the intended revocation ineffective....

PER CURIAM. Jean Srenco and Jacqueline Sincoff appeal from a final judgment denying their Petition for Revocation of Probate of Will. The court found that Lillian Paul’s will had not been revoked by her physical act, pursuant to section 732.506, Florida Statutes (1987)....

...While there was some evidence that the decedent did not want Mr. Taft to get her property and that she had been contemplating the possible dissolution of her marriage to Mr. Taft, the record reflects that she did not revoke the will by an act as contemplated by section 732.506 or by a codicil or other writing as contemplated by section 732.505....

...f the decedent, executed February 2,1981, to probate. The effect of the order was also to deny a petition for revocation of probate brought by the decedent’s natural daughter who claimed that the decedent had revoked the will by cancellation under section 732.506, Florida Statutes (1989)....

...Thus, the final page of the will appears as reproduced in the appendix at the end of this opinion. The facts as related above create two issues for our consideration. First, we must consider whether the testator performed sufficient acts of cancellation or obliteration to fall within the rubric of section 732.506. Second, we must determine the effect of the physical act’s location solely upon the will’s self-proof page. We conclude that the physical acts may be sufficient to meet the requirements of section 732.506, providing appellants prove the necessary accompanying intent to revoke....

...s the inconsistency exists. (2) By a subsequent written will, codicil, or other writing declaring the revoca *473 tion, if the same formalities required for the execution of wills are observed in the execution of the will, codicil, or other writing. Section 732.506 provides for revocation by act, stating: A will or codicil is revoked by the testator, or some other person in his presence and at his direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation....

...As appellants themselves concede, the instant revocation fails under section 732.-505 because the formalities necessary for execution were not followed. See In re Estate of Shifflet, 170 So.2d 96 (Fla. 3d DCA 1964). Whether the attempted revocation also fails under section 732.506 as acts performed with the intent and purpose of revocation is clearly a question of fact....

...The evidence reflects that the testator attempted to revoke the codicil by destroying a photostatic copy. However, the appellant raises questions, in argument, of other possible motives. An original will or codicil may only be revoked consistent with the provisions of section 732.506, Fla.Stat....

...odicils, but the revocation extends only so far as the inconsistency. (2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation. § 732.505, Fla. Stat. (2002). Section 732.506 sets forth the statutory requirements for revocation by act: 732.506....

...Revocation by act A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. § 732.506, Fla....

...We conclude that this alternative basis was not supported by the evidence. Anderson challenged his mother's will and argued that she had lacked capacity and, alternatively, had revoked the will by defacement and obliteration. See § 732.506, Fla....