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How Far May the Witness Wander?

Written by on Mar 12, 2009| Posted in: Probate Litigation

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence.

A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate.

Who is a Witness?

The Florida Supreme Court has stated that an attesting witness is one who is present at the request of the testator for the purpose of seeing that the last will and testament is executed by a legally competent testator as his or her own free act and deed, and who then subscribes his or her own name to the instrument as testimony of the fact that all legal steps necessary to make a will were taken by the testator. In re Watkins Estate, 75 So.2d 194 (Fla. 1954).

What’s Required for Proper Execution?

Under the Florida Probate Code, the execution of a written last will includes the testator’s signing, or acknowledgment that he or she has previously signed the will, or that another person has subscribed the testator’s name to it, in the presence of at least two attesting witnesses. Fla.Stat. §732.502(1)(b). The attesting witnesses must sign the will in the presence of the testator and in the presence of each other. Fla.Stat. § 732.502(1)(c).

The Gray Area

One of the gray areas is the meaning of “presence.” I have previously discussed the case of Estate of Adrian Bancker, 232 So.2d 431 (Fla. 4th DCA, 1970) and I bring it up again because it is instructional on the issue. Bancker involved the revocation of a will by Mr. Bancker. The issue on appeal turned on whether Mr. Bancker had validly revoked his will after the evidence showed that the decedent remained in his bed, although he was not bedridden, while his wife, step-daughter, and her husband went into another room, removed the will from a wall safe and destroyed it by tearing it into pieces and flushing them down a toilet. The decedent’s bedroom was separated from the den in which the wall safe was located by a screened terrace. The doors were closed between the decedent and the wall safe and he could not see the destruction. He was informed subsequently that it had been done and he nodded his head in approval. The Banker court found that the presence requirement was not met under these circumstances.

The Fifth District

On March 6, 2009, one of the Florida appellate courts issued an opinion examining the issue of what constitutes a witness signing in the presence of the executor. Price v. Abate, –So.2d–, 2009 WL 559908, 34 Fla.L.Weekly D502c (Florida 5th DCA, March 6, 2009).

Fran Price filed a petition seeking the administration of the estate of Thomas Flanigan. The petition explained that Flanigan died on February 15, 2005, and that Price was the personal representative of Flanigan’s “undiscovered will”. The petition averred that “[t]he original of the will which is known to exist as of January 2005 has not been found and may not exist at this time”. The petition requested that the trial court admit Flanigan’s estate to probate and that Price be appointed as the personal representative of the estate.

However, Flanigan’s eight intestate heirs (who would take his property if the court determined he died with no valid last will and testament at the time of his death) filed a petition to determine themselves as Flanigan’s beneficiaries. Price responded with her own petition to establish a lost will. Price’s petition alleged that Flanigan had executed a valid will but that it had not been found.

The probate court determined that Flanigan had died intestate and as expected, Price appealed to the Fifth District. The appellate court’s analysis began with the legal maxim that an essential prerequisite to establishing and probating a lost will is proof that the lost document was executed in accordance with the formalities set forth in section 733.502 of the Florida Statutes (discussed above).

The eight intestate heirs claimed that Price could not prove that the lost will was executed properly because there was no clear evidence that the witnesses had signed in the presence of each other and in the presence of the testatory. To support their claim, the heirs cited to the deposition testimony of the only living witnesses to the execution of Flanigan’s purported lost will, bank employees Dalila Ramos and Donna Fazio.

Ramos testified that Flanigan asked her to notarize a hand-written piece of paper which stated “that he was leaving basically everything that he owned to Fran Price.” Ramos testified that she did not remember if Flanigan signed the paper in her presence or not. Ramos further testified that after she notarized the document she called over a teller named Donna Fazio to act as a witness. Ramos also testified that Fazio wasn’t present when she signed it and Fazio didn’t see Ramos sign the will.

Interestingly, the Fifth District, in determining the meaning of the word “presence” didn’t use the analogous Bancker opinion (discussed above) but instead, chose the Florida Supreme Court opinion in State v. Werner, 609 So. 2d 585 (Fla. 1992), where the Court was asked to define the word “presence” for purposes of the lewd and lascivious act statute, section 800.04(3) of the Florida Statutes, which provides that any person who knowingly commits any lewd or lascivious act “in the presence of” any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree. The State argued that the plain and ordinary meaning of “presence” is “the part of space within one’s immediate vicinity.” Upon review, the Court rejected the State’s argument and concluded that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur. The Fifth District thus held:

“Application of this reasoning to the instant case supports the trial court’s conclusion that the mere fact that Ramos and Fazio were in the vicinity of one another at the time Ramos signed Flanigan’s will was insufficient to satisfy the statutory requirement that Ramos sign the will in Fazio’s presence. Accordingly, we affirm the trial court’s ruling.”

Is the “must see or sense” the new standard for the “in the presence of” requirement to have a valid Will? How does a witness “sense” the presence of the grantor of a last will? This case serves as an excellent example of a case turning on its own set of facts. Every case has a unique set of facts and each must be judged on its own particular set of circumstances coupled with any evidence of the testator’s intent.

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