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Destruction of a Will

To be an effective revocation of a will, the destruction of a will in Florida requires the intent to revoke that will.  Florida Statute 732.506 provides:

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.

To be more specific, the testator must intentionally and voluntarily revoke a will, or in other words accidental destruction may not necessarily result in revocation.

If the will is destroyed by someone other than the testator him or herself, the result will depend upon the circumstances surrounding the destruction.  For example, if the destruction was accidental or unauthorized by the testator, then the will may be formally proven as the last valid will based upon the presentation of a copy of the will (and the requisite procedures for admitting a copy of a will, see Fla. Stat. 733.207) or some other secondary evidence.

If a testator instructed someone to destroy the will and did not create a new will prior to death, then the estate would be treated as an intestate estate – meaning there is no will in effect.  The Florida intestacy statutes would then govern the distributions of the estate and the statutes may not necessarily reflect the testator’s intent. (Fla. Stat. 732.102 et seq.)

Proper revocation of a will requires either written instruction to revoke the document, destruction of the document by a physical act (such as tearing the will up or burning the will), or by operation of law such as divorce.  Often times the written instruction on the revocation is contained in a new will where in a provision is written that states that the testator hereby revokes all other prior wills and makes this current new will the last valid will of the testator.

Divorce in Florida revokes all provisions relating to the former spouse, automatically, by operation of law.  Florida Statute 732.507(2) provides:

Any provision of a will that affects the testator’s spouse is void upon dissolution of the marriage of the testator and the spouse, whether the marriage occurred before or after the execution of such will. Upon dissolution of marriage, the will shall be construed as if the spouse died at the time of the dissolution of marriage.

However, this revocation as to the spouse does not necessarily revoke the entire will so the rest of the will does remain in effect unless properly revoked.  Hence, upon divorce (or any other major life event), it is important to review estate planning to assure it effectuates one’s intent.

If looking to revoke a will and replace it with a new will, or if you are undergoing a major life event such as divorce, it is prudent to consult your trusted estate planning lawyer.