## Facts

- Randy John Payne, a Colorado domiciliary, wrote an entirely handwritten (holographic) will in Colorado.
- The instrument was not signed in the presence of two attesting witnesses, and no witnesses signed it.
- Colorado law recognizes holographic wills, and the will was admitted to probate in Colorado.
- Payne owned three houses in Florida.
- In the will, Payne devised one Florida house to his fiancée, Andrea Lee, and directed that Lee receive $40,000 from the sale of the other two Florida houses.
- Payne was survived by a minor daughter, Hannah Jean Payne.
- In Florida proceedings concerning the Florida property, a guardian ad litem (Gary M. Fernald) was appointed to represent Hannah’s interests.
- Carol Hope, acting as personal representative for Payne’s estate, sought Florida probate administration treating the Florida assets as passing by intestacy, arguing the Colorado holographic will was not eligible for probate in Florida because it failed Florida’s execution statute.
- Lee filed a counter-petition seeking ancillary probate in Florida based on the Colorado will, arguing (1) Florida must recognize Colorado’s probate under the Full Faith and Credit Clause, and (2) Florida’s categorical rejection of unwitnessed holographic wills is an improper restraint on the right to devise property, because handwritten wills are difficult to forge.
- The Florida circuit court refused to admit the holographic will to probate in Florida and dismissed Lee’s counter-petition, concluding the Florida property passed by intestacy to Hannah.
- Lee appealed to the Florida Second District Court of Appeal.

## Issues

1. Whether Florida must admit to ancillary probate a Colorado holographic will that was valid and probated in Colorado but was not executed with the two-witness requirements of § 732.502, Florida Statutes, based on full faith and credit.
2. Whether Florida’s will-execution statute, which bars unwitnessed holographic wills, violates the Florida Constitution by unreasonably restricting a testator’s right to dispose of property at death.

## Decision

- The Second District Court of Appeal affirmed the order refusing to admit the Colorado holographic will to probate in Florida and the dismissal of Lee’s counter-petition.
- The court held that Florida’s execution statute, § 732.502, requires a will to be signed by the testator and attested by two witnesses, and an unwitnessed holographic will cannot be admitted to probate in Florida even if valid where executed.
- The court rejected Lee’s full faith and credit argument, concluding that Colorado’s probate did not compel Florida to recognize, for Florida probate purposes, a will that fails Florida’s statutory execution requirements governing the transfer of Florida property.
- On the constitutional challenge, the court concluded it was bound by Florida Supreme Court precedent, particularly In re Estate of Olson, which had sustained Florida’s refusal to recognize unwitnessed holographic wills.
- The court certified a question of great public importance to the Florida Supreme Court concerning the continuing validity and constitutionality of Florida’s categorical rejection of unwitnessed holographic wills.

## Legal Principles

- Under § 732.502, Florida Statutes, a will must be executed by the testator and attested by two witnesses who sign as required; Florida does not admit an unwitnessed holographic will to probate.
- A will’s admission to probate in another state does not require Florida, under the Full Faith and Credit Clause, to probate in Florida an instrument that fails Florida’s execution statute for Florida probate proceedings.
- Florida courts follow Florida Supreme Court precedent; a district court of appeal may not disregard controlling supreme court decisions upholding Florida’s execution formalities.
- Florida may require formal execution safeguards (including witness attestation) as a fraud-prevention measure in succession law, even if those requirements sometimes defeat a decedent’s attempted dispositions.
- When a purported will is not valid for Florida probate, Florida assets pass under Florida intestacy law, and a decedent’s heirs take accordingly.

## Conclusion

Lee v. Estate of Payne held that Florida may refuse ancillary probate of a Colorado holographic will that lacks the two-witness execution requirements of § 732.502, even though the will was valid and probated in Colorado. The Second District affirmed dismissal of the beneficiary’s effort to probate the will in Florida, rejected full faith and credit as a basis to bypass Florida formalities, treated the Florida property as intestate (passing to the decedent’s minor daughter), and certified to the Florida Supreme Court the broader constitutional question about Florida’s categorical rejection of unwitnessed holographic wills.


Lee v. Estate of Payne, 148 So. 3d 776 (2013)