Witnessing a Will – Florida’s Rules
June 15, 2020
The witness requirements to a will are clear and are set forth in Fla. Stat 732.502, that the testator must sign or acknowledge his signature on the will in the presence of two witnesses and that the attesting witnesses must sign the will in the presence of the testator and in the presence of each other. The issue of “presence of a witness” as required by Fla. Stat. 732.502 is discussed in Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1992), Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005), and Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009).
The Fifth DCA in Simpson did not elaborate much on the issue, other than to reverse and remand the issue of “presence” back to the lower court for trial. There was doubt in the affidavits presented to the trial court on whether the testator and other witnesses signed the will in each other’s presence.
The First DCA in Jordan determined the will to be invalid, because the attesting witness had testified he did not see the decedent sign the will, and the other witness did not recall whether the first witness was present for the decedent’s execution. Particularly, he was “not a hundred percent sure” as to the second witness, and he confirmed expressly he did not see the decedent sign his name. Valid execution could not be met under these facts, because they could not establish that the decedent signed the will in the presence of the witnesses and that the witnesses signed in the presence of each other. The will was determined to be noncompliant with Fla. Stat. 732.502.
In Price v. Abate, the trial court concluded that the will was not executed with the necessary statutory formalities of Fla. Stat. 732.502. In so doing, the Fifth DCA analyzed the statute and the meaning of “presence”, and concluded that the witnesses being “in the vicinity” of one another was insufficient to satisfy the statutory requirements.
To be certain that your estate planning documents are properly witnessed, your Florida estate lawyer can conduct your execution ceremony for your estate planning documents. Litigation sometimes ensues when people attempt to execute documents without their lawyer’s assistance. Having your lawyer conduct the execution ceremony will hopefully curtail any later challenge on whether your documents are properly executed. If you have questions regarding the proper execution of your estate planning documents, it is best to consult with your probate lawyer.