By “formalities,” we mean those legal requirements that make the difference between what a Court will consider a valid document (which the Court will honor and enforce), and so much confetti before it’s shredded. These would include witnesses, notarization, and such things as actual signatures. Proper names of people, sufficient legal descriptions of property, and supporting details of transactions could also be considered formalities. Some states don’t require a lot of formalities. States other than Florida, that is.
Speaking first about Wills, it is important to understand that the law of the state where the maker of the will resides controls its validity.
Some states allow what they call “holographic” wills, that is, handwritten by the maker of the will. In those states, the maker’s hand is a substitute for witnesses. Where wills are concerned, though, Florida demands two witnesses, who each sign the will. A holographic will isn’t forbidden – it will be enforced if (and only if) it has two witnesses. That probably sounds simple enough, but there is more, and it is very strictly enforced. The two witnesses must sign the will in the presence of the maker, and in each other’s presence. And the will must state that it happened that way.
There are a number of documents that require two witnesses in Florida. In addition to Wills, Deeds do too. Also leases, both residential and commercial, if the term is for more than a year. In fact, many contracts which, by their terms, can’t be performed within a year require two witnesses.
Surprisingly, notarizing isn’t strictly required as much as one would expect, but most Clerks of Court require deeds to be notarized before they will record them. As a practical matter, many people who draft documents almost automatically insert a notary block (also known as a “Jurat”), and if you don’t get it notarized, they won’t accept it.
It seems that the common experience of business is that notarizing is an excellent way of making sure you’re dealing with whom you think you’re dealing with. Many legal rules grow out of such societal experience. Self-help books and websites make it sound easy to write your own wills, deeds, contracts and corporate papers, but there are a surprising number of very basic rules to keep your eye on, along with other whole layers of legal, ethical and practical considerations to keep in mind, as you navigate these waters. The time and money saved by doing these things yourself can easily lead to very expensive mistakes that will cost you time, money and anguish later.
Another wrinkle with wills: Lawyers typically add a “self-proving affidavit” to wills, which require the maker and the two witnesses to sign a second time, but it makes it possible to probate the will without going to the trouble of finding the witnesses and producing them in the probate court. Being years later typically, those witnesses may be far away, or long departed, and getting the will admitted to probate without them may be difficult and expensive.
As Oliver Wendell Holmes, Jr. said, “The life of the law has not been logic, it has been experience.”
Advice by Tom Brodersen, Esq.