While attending law school, I used to take a yellow highlighter and pen, writing in the margins of my textbooks to annotate what I viewed as the important passages related to that day’s assignment. When a professor called on me in class, I found these highlights and marginalia invaluable.
Many of us are used to taking notes in the margins of written papers. My wife jots down adjustments and additions on her recipe cards. My retired law partner, John Sheppard, writes down his thoughts in the margins of biblical passages.
Nevertheless, I’m here to warn you against putting anything in the margins of your estate planning documents. From time to time, I see wills or trusts that have crossed-out provisions with handwritten changes in the margins. While some may think that this is an easy (and inexpensive) way to amend or change provisions in your legal documents, those handwritten changes usually cause more problems than they solve.
A few years ago, a client tried to amend her documents by making handwritten changes. She deleted some beneficiaries, reduced some of the gifts to other beneficiaries and added new beneficiaries that didn’t appear in the typed provisions of her documents.
She had also taken the time to initial next to the changes, and, in one change, went so far as to have someone notarize the page. We didn’t know what she intended to do.
When she died, these handwritten changes were discovered. The trustee of her trust wasn’t sure what to do with these handwritten changes, especially since many of them were witnessed and at least one appeared to be notarized.
Florida law is clear on how to change a will or a trust. In order for a codicil to a will or an amendment to a trust to be valid, it must be signed by the testator at the end of the document and two witnesses must also witness the testator’s signature in the presence of the testator and in the presence of each other.
As an example, assume that Denise signs a will in the presence of William. William signs as a witness and then goes home. Denise then takes the will to Beatrice – her neighbor across the street – and tells her that “this is my signature on the will.” Beatrice signs the will as Denise’s second witness. This is not a valid will. While Denise’s will was signed by two witnesses in Denise’s presence, the document was not witnessed by William and Beatrice in each others presence.
Returning to the story about the lady who wrote changes in her trust – once those handwritten notations were discovered, the beneficiaries hired lawyers to determine whether these notations changed the original provisions. After several thousands of dollars in legal fees and about a year’s worth of depositions and court hearings, the court ruled that the handwritten notations had no legal significance because they were not signed with the legal formalities required by Florida law.
The moral of this story is not to make handwritten changes in your legal documents. If you want to amend your will or your trust, you should have a separate document that is signed and witnessed in accordance with the law.
In order to admit the will into probate without the testimony of the witnesses, it is also necessary that the signatures of the testator and the witnesses be “self-proofed.” In other words, the signatures should be notarized with special language found in the statutes. That language requires that the notary be a person who is not one of the witnesses and that the notary acknowledges that the testator signed in the presence of the witnesses who signed in the presence of the testator and of each other.
If a proper self-proof does not appear at the end of a will, then it will be difficult, time consuming and more expensive to admit the will into probate. Since each state’s self-proof statutory language is different, it makes sense to update your documents to comply with the state law in which you currently reside so as not to cause headaches for your loved ones.
This is one of the many reasons why an attorney will tell you to update your legal documents when you move from one state to another. While the documents remain valid so long as they were signed with the formalities that the state in which they were created requires, that doesn’t mean that the documents will be simple or easy to administer upon your death.
So don’t write in the margins of your will or trust. Instead, get a valid amendment in compliance with the state law where you currently reside. For more information for about Florida’s laws and residency requirements, consult my website felp.estateprograms.com, and request your free copy of The Florida Residency & Estate Planning Guide.
The Sheppard Law Firm has its main in Fort Myers and also in Naples by appointment.
© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.
