## Facts

- James J. Dickson executed a four-page, typewritten will on February 2, 1981, in compliance with Florida’s statutory requirements for a valid will.
- The last page of the document was a self-proof affidavit bearing a raised notarial seal.
- On the self-proof affidavit page, a handwritten statement in red ink appeared, dated March 16, 1987: “I myself declare this will null and void of sound mind.”
- Dickson’s handwritten signature followed the red-ink statement.
- On the same page, the word “void” was circled and written over the area of the raised notarial seal.
- After Dickson died, his personal attorney—who had prepared the will—filed a petition seeking a determination of the will’s validity (and related determinations concerning administration and beneficiaries).
- Interested parties, including Kim Bertoglio (Dickson’s natural daughter) and others, challenged admission of the will, asserting the red-ink writing and markings revoked the will by a physical act under Fla. Stat. § 732.506.
- The trial court ruled the attempted revocation failed as a matter of law because the physical act was insufficient, declined to take evidence on whether Dickson intended to revoke, and admitted the will to probate.
- Bertoglio and the other challengers appealed.

## Issues

1. Whether the red-ink statement declaring the will “null and void,” together with Dickson’s signature and the “void” marking over the notarial seal, could constitute a statutory “cancellation” or “obliteration” under Fla. Stat. § 732.506 if done with intent to revoke.
2. Whether revocatory markings appearing only on the will’s self-proof affidavit page may legally support revocation of the entire will.
3. Whether the probate court erred by admitting the will to probate without hearing evidence on the testator’s intent to revoke.

## Decision

- The Third District Court of Appeal reversed the order admitting the will to probate and remanded for further proceedings.
- The court held the physical acts shown on the self-proof affidavit page may satisfy the statute’s cancellation/obliteration requirement, so long as the contestants prove the accompanying intent to revoke.
- The court held the fact that the marks were made on the self-proof affidavit page does not, by itself, bar a finding that the entire will was revoked.
- The court ruled it was error to dispose of the revocation claim as a matter of law without an evidentiary inquiry into Dickson’s intent.

## Legal Principles

- Under Fla. Stat. § 732.506, revocation by physical act requires both (1) a statutorily recognized act (including canceling or obliterating) performed on the will and (2) an intent to revoke.
- Whether the testator acted with intent to revoke is ordinarily a question of fact that may require evidence about the surrounding circumstances.
- Writing words of revocation on the testamentary instrument, and making visible marks consistent with revocation, can qualify as cancellation or obliteration when coupled with the required intent.
- A revocatory act is not automatically ineffective merely because it appears on a self-proof affidavit page rather than on the dispositive provisions; the effect depends on the act plus intent as proven.
- A probate court should not treat a revocation-by-act claim as legally impossible when the proponent has not been allowed to present proof of intent.

## Conclusion

In *In re Estate of Dickson*, the Third District reversed probate admission of a will where the testator wrote and signed a red-ink declaration that the will was “null and void” and marked “void” over the raised notarial seal on the self-proof affidavit page. The appellate court held these acts could constitute statutory cancellation or obliteration under Fla. Stat. § 732.506 if accompanied by intent to revoke, and the placement of the markings on the self-proof page did not, as a matter of law, prevent revocation of the entire will; the case was remanded for fact-finding on intent.


In re Estate of Dickson, 590 So. 2d 471 (1991)