Notarial will are not valid in Florida unless signed by the Testator

Black’s Law Dictionary defines a nuncupative will as a “will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof.”

A Third District Appeals court in Florida recently ruled that oral wills, or nuncupative wills, that are not signed by the testator or its witnesses cannot be admitted to probate in Florida even if they written, dictated or approved by a notary.

Florida gives its residents a lot of freedom to pass property to loved ones and friends at death through the probate process. However, to do so a person must have a valid will that meets certain requirements under state law. Without a valid will, a person dies “intestate,” which means the person’s estate will be distributed by the probate court to predetermined beneficiaries set by the probate laws.

Writing a valid will can be a tricky process and many of the requirements and elements that need to be met depending on the testator’s estate planning goals. Two of the main requirements are that the will is signed by both the testator, the person who creates the will, and the witnesses to the will.

There are many ways that a will can be invalidated, but Florida statutes have specifically detailed two types of Will are always excluded: holographic wills and nuncupative wills.   A holographic will is often a will that is handwritten by the testator and has no witnesses. These wills are sometimes accepted in other states, but are not valid if the will is executed in Florida.

In Malleiro v. Corallo, the court had to decide whether Elena Isleno’s estate was governed by an earlier will executed in New York, or by a subsequent unsigned notarial will executed in Argentina.   Five years before Mrs. Isleno passed away, she executed a will in New York with the usual formalities of American wills, including her signature and the signature of three witnesses.   Four months later, Isleno executed a second will in Argentina. This time she orally pronounced her testamentary wishes to a notary who transcribed them. The Will sets for that she did this in front of witnesses and that Isleno orally approved the will. The will was not signed by Isleno or the witnesses.

Florida statute section 732.502 requires that the testator and the witnesses sign the will in order for it be a legally binding document. The main issue of the case was to determine if the will was nuncupative, and thus invalid, or if the will was a notarial will, which are often accepted by Florida probate courts. While there is no strict definite of nuncupative wills, the court relied upon the definition provided by Black’s Law Dictionary as a “will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof.” To define a notarial will, the court looked to the Florida Estates Practice Guide, which defines these wills as a will dictated to and taken down by a notary.

The court held that even if the will is a notarial will it still must be signed by the testator and witnesses to be valid. The court stated it reached this opinion based upon the near universal emphasis in both foreign and domestic probate laws on the importance of testator’s signature. For more information on how to create a valid will in Florida, contact the Law Office of David Goldman PLLC today.

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