Probate, trust, guardianship and inheritance litigation
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Can a Beneficiary Witness a Will to be Valid in Florida

By:  Jeffrey Skatoff, Esq.

Yes.  A beneficiary witness to a Florida will does not make the will invalid.

The Florida Probate Code, at Section 732.504, entitled “Who May Witness,” sets forth the following:

(1) Any person competent to be a witness may act as a witness to a will.
(2) A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.

Should A Beneficiary Witness A Will In Florida?

Just because a beneficiary of the will can witness the will does not make it a good idea to witness the will.

If the will is going to be challenged on undue influence grounds, the participation of the beneficiary in the execution process may make is easier to challenge the will.  Indeed, under the relevant test for undue influence under Florida law, the presence of a substantial beneficiary of the will at the execution ceremony may make it much harder to sustain the validity of the will.

The seminal undue influence case in Florida, Estate of Carpenter, sets forth active procurement factors that can lead to a presumption or finding of undue influence.  The purpose of the active procurement factors are to determine whether a beneficiary was active in procuring the will.  The first Carpenter factor is:

presence of the beneficiary at the execution of the will.

Therefore, a beneficiary acting as a witness to the will helps anyone who pursues an undue influence challenge to the will’s validity.

The law in some other states, such as New York, Oklahoma, Georgia, and Texas, voids bequests made to beneficiaries who also witness the will.  Other states, like California, create a presumption that the bequest to the beneficiary is invalid, and places the burden on the beneficiary to overcome the presumption.

Accordingly, it is certainly best practice to not have a beneficiary or other interested person witness a will.  Indeed, it is the best practice to exclude any beneficiary of the will from the entire execution process, so as to avoid any issues about the legitimacy of the will.  Just because a beneficiary can witness a will in Florida, does not mean that a beneficiary should.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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