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Taxation & Estate Planning

: Florida Probate Litigation Blog

MISS LILLIAN PELKEY'S PETTICOAT

By Juan C. Antúnez

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By the way, as noted by Joel, Illinois continues to follow the traditional rule disqualifying attesting witnesses from benefiting under wills they witnessed.  

The commentary to Uniform Probate Code section 2?505 (which was adopted verbatim by Florida as F.S. 732.504) explains why the old rule against witness-beneficiaries  was abandoned by the UPC drafters:

The position adopted simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator's family on a home?drawn will is not penalized.


This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the device might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.

Full post as published by Florida Probate Litigation Blog on January 25, 2008 (boomark / email).

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