DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARGOT M. CAVEGLIA and CHRISTOPHER CAVEGLIA,
Appellants,
v.
DIANA H. HEINEN and
EDWARD DOWNEY, ESQ., as personal representative,
Appellees.
No. 4D21-3624
[March 8, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott Ryan Kerner and Rosemarie Scher, Judges; L.T. Case
No. 50-2019-CP-004273-XXXX-SB.
Justin C. Carlin of The Carlin Law Firm, PLLC, Fort Lauderdale, for
appellants.
Edward Downey of Downey | McElroy, P.A., Palm Beach Gardens, for
appellees.
WARNER, J.
Appellants, Margot M. Caveglia and Christopher Caveglia, appeal a final
judgment that revoked their appointment as personal representatives of
an intestate estate. The trial court instead appointed appellee Edward
Downey as personal representative of the decedent’s estate based upon a
will executed in 2014. Appellants claim that the 2014 Will was revoked by
a holographic will executed by the decedent in 2015 in Louisiana. Because
a testamentary instrument’s validity is determined by the law of the state
where the testator is domiciled at death, which in this case is Florida, the
2015 Will cannot be recognized as revoking the decedent’s 2014 Will.
Therefore, the court correctly appointed appellee Downey as the personal
representative under the 2014 Will. We affirm.
Rory Ernest MacDowell, the decedent, executed a Last Will and
Testament dated May 15, 2014. Then, in 2015, the decedent handwrote
the 2015 Will, in which he stated he was revoking prior wills, but the 2015
Will was not witnessed. The decedent resided in Louisiana when he
executed both wills.
The decedent moved to Florida around the end of 2018, and died in
Florida in July 2019. Unaware the decedent had executed any will,
appellants—the decedent’s daughter and son-in-law—filed a petition for
administration of an intestate estate. The court appointed appellants as
personal representatives and issued letters of administration.
Sometime thereafter, a relative found both the 2014 Will and the 2015
Will in a book.
In January of 2021, appellee Heinen, the decedent’s longtime partner,
filed a petition to admit a later discovered will to probate and then an
amended verified petition seeking to probate the 2014 Will. Appellants
answered and asserted an affirmative defense contending that the
holographic 2015 Will revoked the 2014 Will. Heinen replied that the 2015
Will was invalid under Florida law, because it was holographic and
unwitnessed. The parties stipulated that the 2014 Will was executed in
accordance with both Florida and Louisiana law.
The parties filed cross-motions for summary judgment. Appellants
claimed that the 2015 Will revoked the 2014 Will under Louisiana law, and
as the 2015 Will is not recognized in Florida, the decedent died intestate.
Heinen contended that because the 2015 Will is not recognized in Florida,
it could not validly revoke the 2014 Will.
After a hearing on the competing motions for summary judgment, the
court granted Heinen’s motion. The court found that the decedent died a
domiciliary of Florida. The court determined that the 2015 Will was invalid
under Florida law and as such was invalid as a revocation instrument.
Based on the summary judgment order, the court entered final judgment,
revoking appellants’ letters of administration and appointing appellee
Downey as personal representative under the 2014 Will. This appeal
follows.
The standard of review for choice-of-law questions is de novo. Williams-
Paris v. Joseph,
329 So. 3d 775, 778 (Fla. 4th DCA 2021). Appellants
contend that Louisiana law should determine whether the 2015 Will
revoked the 2014 Will, since the decedent was domiciled in Louisiana
when both wills were executed. They claim that the fact that the decedent
moved to Florida in 2018 could not operate to “revive or resurrect” the
2014 Will that had been revoked under Louisiana law by the
2015 Will.
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We disagree, because that would require a Florida court to enforce a will
not valid under the laws of this state.
“The primary goal of the law of wills, and the polestar guiding the rules
of will construction, is to effectuate the manifest intent of the testator.” In
re Est. of Dickson,
590 So. 2d 471, 472 (Fla. 3d DCA 1991) (citing Marshall
v. Hewett,
156 Fla. 645, 648,
24 So. 2d 1, 2 (1945)). “Notwithstanding this
goal, strict compliance with statutory requirements is a prerequisite for the
valid creation or revocation of a will.”
Id. (emphasis added); In re Est. of
Tolin,
622 So. 2d 988, 990 (Fla. 1993) (“[I]t is well settled that strict
compliance with the will statutes is required in order to effectuate a
revocation of a will or codicil.”); Cioeta v. Est. of Linet,
850 So. 2d 562, 564
(Fla. 4th DCA 2003) (same); see also Dickson,
590 So. 2d at 472
(“Furthermore, it is generally held that . . . a written revocation cannot be
found when not performed in compliance with section 732.505[.]”).
This requirement of strict compliance with state law in executing both
a will and a revocation instrument is not unusual. Louisiana also provides
for the revocation of a will by statutory regulation and “such statutes are
mandatory and strictly pursued.” Succession of Melancon,
330 So. 2d 679,
681 (La. Ct. App. 1976); Succession of Beard,
483 So. 2d 1228, 1229 (La.
Ct. App. 1986) (“The statutes governing revocation of testaments are
mandatory and must be strictly pursued.”).
“A will speaks as of the time of the death of the testator.” Est. of
Murphy,
340 So. 2d 107, 109 (Fla. 1976). Wills are ambulatory, and as
such the revocation is not determined until the death of the decedent. See
In re Est. of Algar,
383 So. 2d 676 (Fla. 5th DCA 1980) (stating “wills are
ambulatory, and revocability is an essential element of a will”).
These principles are embodied in the Restatement. Restatement
(Second) of Conflict of Laws § 263 (Am. L. Inst. 1971) provides:
(1) Whether a will transfers an interest in movables and the
nature of the interest transferred are determined by the law
that would be applied by the courts of the state where the
testator was domiciled at the time of his death.
(2) These courts would usually apply their own local law in
determining such questions.
(Emphasis added). With respect to revocation of a will, Restatement (First)
of Conflict of Laws § 307 (Am. L. Inst. 1934) states:
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Whether an act claimed to be a revocation of a will is effective
to revoke it as a will of movables is determined by the law of
the state in which the deceased was domiciled at the time of
his death.
Although appellant notes that not all states follow these principles, we
conclude that Florida statutes require adherence to them. To do otherwise
would compel Florida courts to breathe life into instruments that Florida
statutes do not recognize as valid.
While Louisiana law permits holographic wills, Florida does not unless
the instrument is witnessed with the same formalities as any will. Florida
law expressly does not recognize holographic wills executed by non-
residents. Section 732.502(2), Florida Statutes (2019), states:
Any will, other than a holographic or nuncupative will, executed
by a nonresident of Florida, either before or after this law
takes effect, is valid as a will in this state if valid under the
laws of the state or country where the will was executed. A
will in the testator’s handwriting that has been executed in
accordance with subsection (1) shall not be considered a
holographic will.
(Emphasis added). With respect to revocation, section 732.505(2), Florida
Statutes (2019), provides that a will is revoked “[b]y a subsequent will,
codicil, or other writing executed with the same formalities required for the
execution of wills declaring the revocation.” Id. (emphasis added). Here,
because the 2015 Will was not executed with the formalities of section
732.502(1), it cannot be probated as a will in Florida, nor can it act as a
revoking document.
The trial court relied on Zaidman v. Zaidman,
305 So. 3d 330 (Fla. 3d
DCA 2020) as controlling. In Zaidman, the decedent executed a will in
Florida in 2012, with the requisite formalities under section 732.502(1),
and then wrote a holographic will in Belgium in 2015. Id. at 331. After
the decedent’s death, the parties filed the competing wills for probate. The
trial court concluded that the earlier Florida will controlled and had not
been revoked by the later Belgian will. Id.
On appeal, the court noted that while the primary goal of the law of
wills was to effectuate the intent of the testator, strict compliance with the
probate code was a prerequisite to creating a revocation of a will. Id. at
332. The court found the holographic will was not executed in strict
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compliance with section 732.502, Florida Statutes, and thus was invalid
as a will in Florida. Id. at 332–33. The court explained, “Florida courts
refuse to recognize holographic wills that are not executed in strict
compliance with Florida’s testamentary statutes, even if the will is valid
under the laws of the state or country of execution.” Id. at 332; see also
In re Est. of Olson,
181 So. 2d 642, 642 (Fla. 1966) (affirming trial court’s
order denying the probate of a holographic will “because it was not attested
by two witnesses”); In re Est. of Salathe,
703 So. 2d 1167, 1168 (Fla. 2d
DCA 1997) (holding that holographic will executed by the decedent in
Germany “is without force or effect under Florida law”) (citing § 732.502(2),
Fla. Stat. (1995)); Lee v. Est. of Payne,
148 So. 3d 776, 777 (Fla. 2d DCA
2013) (affirming trial court’s ruling that testator’s handwritten will, which
was valid under Colorado law, was invalid in Florida because the testator
“signed his will without attesting witnesses”).
The Zaidman court also found the statutorily required formalities for
wills prevented the holographic will from being recognized as an
instrument of revocation, stating:
The revocation clause within the 2015 Will fails under section
732.505, for the same reason the 2015 Will in its entirety fails
under section 732.502—the formalities necessary for
execution for an instrument of revocation are the same as
those applicable to the Florida last will and testament sought
to be revoked. In this case, those statutory formalities were
not followed with respect to the purported revocation.
305 So. 3d at 333. We agree with Zaidman. Similarly, in this case, the
2015 Will can neither be recognized as a will or an instrument of revocation
under Florida law.
Conclusion
Florida law on the date of a domiciliary decedent’s death determines
the validity of wills and instruments of revocation. Accordingly, the trial
court correctly granted summary judgment declaring that the holographic
2015 Will was ineffective to revoke the 2014 Will. The court therefore
properly revoked appellants’ letters of administration and appointed
appellee Downey personal representative based on the 2014 Will.
Affirmed.
KLINGENSMITH, C.J., and CIKLIN, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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