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Which Separate Writing Counts if There’s More Than One?

by | Jan 5, 2022 | Estate Planning, Trust |

In previous blog entries, we’ve discussed the use if a “separate writing” in Florida estate planning. A person may refer to a separate writing in his or her Will or Trust. The separate writing allows a person to gift their personal property such as jewelry, furniture, etc. without listing those items in the Will or Trust.

In order to be effective, a separate writing must describe the following:  the items of tangible property being gifted and the person(s) to whom they are given. A separate writing must also be signed and dated.

But what if a person dies leaving more than one separate writing? Do they all apply or do none of them apply? Fortunately, the applicable statute gives an answer. Section 732.515, Fla. Stat. provides as follows: “If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.”

Consider an example. Bernard dies with a Will that has the following provision:

I may leave a written statement or list disposing of certain items of my tangible personal property.  Any such statement or list in existence at the time of my death shall be binding with respect to all items devised therein.

Bernard dies and with his Will, his daughter finds three separate writings. One is dated June 12, 1982; one is dated February 4, 1999; and one is not dated. So, which one is effective? First of all, the undated one is not effective at all since it lacks one of the requirements for a valid separate writing—i.e. the date it is signed. The other two writings may be effective but only to the extent that they are not in conflict regarding the items given and the recipients who received them. If the June 12 writing and the February 1 writing cover different items of personal property, they could both be effective. But if the June 12 writing leaves Bernard’s Grand piano to his daughter and the February 4 writing leaves the same piano to his nephew, then the February 4 writing controls and the nephew gets the piano.

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