The Fourth District Court of Appeal held in an interesting case that a self proving affidavit cannot be construed as valid in the absence of a properly executed will. As discussed previously a self proving affidavit is an affidavit that can be placed in with a will to allow it to skip probate. This case poses the question what if that affidavit was executed properly on an otherwise invalid will?
- Testator died with two executed wills, one from 1982 and a new one from 2007.
- In the 1982 will the wife had waived her right to an elective share, which is a mechanism of probate law that allows her a certain percentage of the estate regardless of what she inherits under the will.
- The 2007 will did not have such a waiver.
- Mother sued and claimed her elective share and her daughter challenged this arguing that the 2007 will was invalid.
- This challenge was based on the fact that one of the witnesses to the will itself did not sign it in the presence of the testator, notary and other witness.
- The evidence suggested that the self proving affidavit was executed properly though such that the will should have never gone to probate.
This case arose on summary judgment meaning the Court did not have to make the difficult decision of whether or not to invalidate the 2007 will, but this has a lot of lessons for any Palm Beach Probate Attorney along with anyone else who is preparing a will.
- Choose Your Witnesses Carefully. A lot of thought should go into choosing a witness, you want someone who the court and your heirs will be able to find when the time comes. At the same time you need someone who is unbiased, one simply claim that the witness was not there could cost your estate countless dollars and time, possibly absorbing your inheritance.
- Don’t Take Shortcuts. I cant tell you how many cases arise in Palm Beach Probatewhere one witness claims they were not there. If you do not have all the witnesses around, do not cut the corners, wait to execute the document!
- Destroy Old Wills. This case all arises out of the fact that the testator had multiple wills in circulation, in fact the case was originally based on that question – which will was valid?Destroy old wills and other documents that are no longer valid.
It will be interesting to see how the Fourth DCA ultimately rules but one thing is for certain, the facts in this case were avoidable.
Want to learn more? Read the entire case here:http://www.4dca.org/opinions/Feb%202015/02-18-15/4D13-2366.op.pdf