Lee v. Estate of Payne

Lee v. Estate of Payne, 148 So.3d 776, 2013 WL 5225200 (Fla. 2d DCA 2013)

This case involved a decedent's fiance's attempt to admit the decedent's Colorado holographic will in Florida (where the decedent owned three homes).  The holographic will left the fiance one of the houses, plus $40,000 from the sale of the other two houses.  He left his father the remainder of the sale proceedings.

The decedent's sister and Colorado personal representative filed a Petition for Administration in Florida, and alleged that the holographic will was not valid under F.S. 732.502(2), since it was not executed in compliance with F.S. 732.502(1).  She listed the decedent's minor daughter as the only beneficiary of the estate.

The fiance sought to have the Florida court admit the holographic will to probate to give full faith and credit to the Colorado court.  

F.S. 734.104 say that a foreign will that devises Florida real property and is admitted to probate in another state can be admitted in Florida only if that will was executed as required by chapter 732.  Since the Colorado will was not witnessed, it did not comply with Florida law and thus could not be admitted in Florida.

The fiance argued that F.S. 732.502(2) unconstitutionally restrains the testator's right to devise property.  However, in 1966, the Florida Supreme Court decided a similar case and in that case affirmed a trial court's order denying the probate of a holographic will.  Since that case has not yet been overruled, the Court held that it was required to hold that the holographic will could not be admitted to probate in Florida.  It then certified the following question to the Supreme Court: "Do sections 732.502(2) and 734.104(a) violate Article I, Section 2 of the Florida Constitution by categorically defeating the intent of the testator of a handwritten holographic will without a rational relation to the fraud it seeks to cure?"





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