Do you know the difference between a self-proving affidavit and an “attestation clause?” Do you need both in your Palm Beach will? You may want to see what Florida’s Fourth District Court of Appeal had to say about the two in a February 18, 2015 case.
Self-Proving Affidavits
- All states probate codes now offer a device known as a self-proving affidavit.
- These documents allow a testator’s will to be admitted to probate without two witnesses testifying in court.
- Do you know where to find the specifics on what is contained in a self-proving affidavit? Have you looked in the Florida probate statutes?
- Without this document a valid West Palm Beach will still needs two witnesses to come down to the courthouse and testify to the validity of the will.
- What if they are dead? The court has a way to remedy this.
- But, what happens if one of the witnesses moved to Argentina? You may still have to get them or a deposition of them into court that can get expensive.
- A self-proving affidavit acts as a substitute in this instance and allows the will in without having to call anyone into West Palm Beach court!
- Look out these are sometimes also called a self-proof clause.
Attestation Clauses
- Attestation clauses can look very similar to a self-proving affidavit to the untrained eye.
- These usually appear right below the signature line of the testator of the will.
- Usually they read out the necessary elements to witness a will such as that they were present, at the signing, and that the testator seemed to be of sound mind.
- These date back to the wills of Olde England but they actually are not even necessary elements of a will.
- No state requires attestation clauses at this time.
- So what are they good for?
- Suppose you have a witness with a bad memory, this is great support that a will was witnessed properly.
- Also when you have a hostile witness who says now that the execution was wrong, the statements they signed that day can challenge these witnesses.
- Just remember though, the witnesses still have to be hailed into court.
Helfenbein v. Baval: Improper Self-Proving Affidavits Can Cost You Big Time
- The Fourth District Court of Appeal for Florida recently heard the case of Helfenbein v. Baval , 157 So. 3d 531.
- The testator’s daughter as personal representative of the estate brought an action seeking clarification of the correct will to admit to probate.
- Summary judgment could have wrapped the case up quick and avoided a prolonged jury trial but the self-proof clause said that three witnesses were present with the testatorand only two of them signed it. The court found this brought up legitimate issues of theveracity of those witnesses, do you agree? Either way now the case is set for trial.
Want to learn more check out the entire case by clicking here.