Florida/Georgia Personal Injury & Workers Compensation

...The court shall award a reasonable attorney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. [3] Under the current probate code, section 732.701, Florida Statutes (1975), it is clear that an agreement not to revoke a will must be in writing and signed by the agreeing party in the presence of two attesting witnesses, but this statute was not in effect at the time the will in qu...

...[6] Presumably, the Miller children framed this count as one of constructive trust and not as a breach of an agreement to make a will or give a specific devise because the statute of wills would generally preclude an action to enforce an oral agreement to make a will or devise. See § 732.701(1), Fla....

...The complaint merely referred to Hal Vickery's mutual will. The trial judge dismissed the complaint without explanation after appellee moved for a dismissal based on the untimeliness of the filed claims and the complaint's failure to state a cause of action. Section 732.701, Florida Statutes (1987), provides: (1) No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two witnesses....

...why equitable doctrines should be permitted as defenses to the Banking Statute of Frauds. This failure is troubling in light of decisions precluding equitable defenses in other, similar contexts, like the statute of frauds applicable to wills and devises of real property. § 732.701, Fla. Stat. (2016). As we have explained, section 732.701 pertaining to agreements concerning succession, is “not a typical statute of frauds,” so the legislature must have “had more in mind than simply extending the statute of frauds to contracts for bequests of personality” and “permit[ing] part performance ....

...and thus is no longer open to attack. A summary judgment was entered in favor of George, whereupon Daniel and Michael took this appeal. We reverse both aspects of the summary judgment. In this state an oral agreement to make a will is unenforceable. § 732.701, Fla....

...Elsa also testified that she witnessed the original signatures. The court held that the copy was inadmissible and entered final judgment in favor of the Lopezes. In Florida, an agreement to make a will must be “in writing and signed by the agreeing party in the presence of two attesting witnesses.” § 732.701(1), Fla.Stat....

long as the agreement in form complies with Section 732.701(1), and no evidence exists that any signatures

731.051, Fla.Stat. (1957), now incorporated in § 732.701, Fla.Stat. (1977), provided that no agreement

...Tulin, in turn, filed a motion to dismiss the complaint on three grounds: illegal gambling, barring of the breach of fiduciary duty claim under section 732.515, Florida Statutes, and failure to state a cause of action because the agreement did not comply with section 732.701, Florida Statutes. The trial court granted Tulin’s motion to dismiss based on his third point — the failure to comply with section 732.701 1 — and did not address points one and two....

...The complaint alleged that all conditions precedent — which would include the signatures of two attesting witnesses — were met, excused, or waived and, as this court has stated, such allegations must be accepted as true. As such, the trial court’s finding that section 732.701 was not complied with was based on facts not within the scope of the appellant’s complaint....

...Thus, because a court may not look anywhere but to the document on a motion to dismiss, and the trial court here clearly exceeded the boundaries of the four corners of appellant’s complaint in dismissing the claim on the basis that two attesting witnesses did not sign the agreement in accordance with section 732.701, the trial court erred in its dismissal of appellant’s claim....

...his claim with prejudice. Based on the foregoing, we find the trial court erred in dismissing appellant’s claim and we, therefore, reverse for further proceedings consistent with this opinion. Reversed. GROSS, C.J., and DAMOORGIAN, J„ concur. . Section 732.701, Florida Statutes, in part, provides: No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses. § 732.701(1), Fla....

...ant was paid by appellee for all or some of the services that she rendered to appellee; and all of appellant’s claims for *691 relief that were based upon any oral agreement by appellee to make a will naming appellant as beneficiary were barred by section 732.701 and/or section 725.01, Florida Statutes (1985)....

...It is clear from the nature of the oral agreement that the primary purpose of that agreement was to provide services to the testatrix (appellee) during her lifetime in exchange for the agreement by the testatrix to make a will devising real property to the appellant. As such, section 732.701, Florida Statutes (1985), is on point....

...e agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses. There are no exceptions by the legislature to that section and that statute makes no distinction as to whether the promisor was alive or deceased. Section 732.701 comports with the required formalities of will-making as contained in section 732.502 and is a reasonable requirement for the enforceability of agreements to make wills....

...ivery of possession of the real property, which was never accomplished in this case. In First Gulf Beach Bank and Trust Company v. Grubaugh, 330 So.2d 205, 210 (Fla. 2d DCA 1976), the court, in considering section 731.051 (the predecessor statute to section 732.701), stated: Upon reflection, we are persuaded that Fla.Stat....

...To permit part performance or an unwit-nessed writing to obviate the statute would be to thwart its obvious purpose. Similarly, in Silianoff v. Silianoff, 399 So.2d 462 (Fla. 2d DCA 1981), the court held: In this state an oral agreement to make a will is unenforceable. § 732.701, Fla.Stat....

...lting trust, contending that these claims were impermissibly predicated upon oral communications barred by section 90.602, Florida Statute (2002), or barred by the statute of frauds. The Estate further contended that that these three claims violated section 732.701, Florida Statutes (2002), because an agreement to make a devise had to be in writing and signed by the decedent in the presence of two witnesses....

or her estate, as required by Florida Statute § 732.-701(2). 2. Neither Monique nor myself entered into

...Appellant argues in his initial brief that the oral contract at issue is “to devise or convey real estate.” In his reply brief, appellant argues that this action is not to enforce an oral contract to make a will or devise, which he concedes is clearly barred by section 732.701, but is instead, an action to obtain “specific performance of contract rights in which part performance of an alleged contract has been accomplished and legal title is to be passed by will or devise.” Perhaps we fail to grasp the subtle distinction appellant suggests....

...vise of property, the oral contract is not enforceable. Section 725.01, Florida Statutes (1989), provides that no action shall be brought on a contract for sale of real property, or any interest therein, unless the contract is in writing. Similarly, section 732.701(1), Florida Statutes (1989), provides that no agreement to make a will or a devise shall be binding and enforceable unless in writing and signed by the agreeing party in the presence of two attesting witnesses....