Probate, trust, guardianship and inheritance litigation
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Notarial Wills of Florida Nonresidents Valid Only If Signed By The Testator

By:  Jeffrey Skatoff, Esq.

In Malleiro v. Mori, Florida’s Third District Court of Appeal considered the competing wills of a nonresident – one will executed in New York, and a notarial will done in Argentina – to determine which will validly devised Decedent’s estate in Florida.  This issue is particularly important in Florida, where many people from foreign countries and other states come to enjoy their retirement years.

What Is A Notarial Will?

The term “notarial will”  is not defined by the Florida probate code. Rather, a notarial will is a creature of civil law, and is a will dictated and taken down by a notary.  The Florida appellate court  in Malleiro noted that:

The main characteristic of a notarial will is the central role played by the civil law notary in supervising the creation of the will and permanently storing the will. When performing this task, the civil law notary is acting in a quasi-judicial capacity in a manner that has no counterpart in common law jurisdictions and which should not be confused with the ministerial functions of a common law notary public.

Case Study: Malleiro v. Mori

Elena Islena died in Florida, without a spouse or child.  When Elena died, Elena owned property in both the United States and Argentina.  About five years before Elena died, Elena executed a will in New York (“New York Will”).  Elena signed the New York Will at the end, and the New York Will had attestations from three witnesses who subscribed in the presence of each other and Elena.

The New York Will complied with the formalities required of wills under Florida law.

Four months after executing the New York Will, Elena executed a will in Argentina (“Argentine Will”).  Elena orally pronounced her testamentary wishes to a notary who transcribed them.

The Florida appellate court explained that:

The Argentine will sets forth that the Testator made her attestations before the notary in the presence of three witnesses who were identified by name, address, and national identity card number. The Argentine will explains that the notary typed up the testamentary wishes and presented the typed document to the Testator, who declined to read it. The document was then read back to the Testator, who orally approved it in the presence of the witnesses. The notary signed and stamped the will, but the Testator and the witnesses did not sign it. The Argentine will, which distributed all of the Testators’ assets, was apparently admitted to probate in Argentina. It revoked “any other testament that is contrary to the present [one].”

One of the beneficiaries of the New York Will filed a petition for administration of the New York Will in Florida probate court.  Some of the beneficiaries of the Argentine Will objected and filed a petition for administration of the Argentine Will.  The Florida probate court admitted the Argentine Will to probate, concluding that both wills complied with Florida probate law and that the Argentine Will revoked the New York Will.

Can an Unsigned, Notarial Will Done In Another Country Be Admitted To Probate In Florida?

On appeal, the issue was whether the unsigned, notarial will done in Argentina could be admitted to probate in Florida.  The Florida appellate court ultimately said no.  Three provisions of the Florida probate code were examined by the Florida appellate court in reaching this determination.

The Requirements of A Valid Will in Florida

First, the Florida appellate court considered section 732.502(1) of the Florida Probate Code, which sets forth the requirements of a valid will.  Section 732.502(1) reads:

(a) Testator’s signature.–
The testator must sign the will at the end; or

The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

(b) Witnesses.–The testator’s:
Signing, or

That he or she has previously signed the will, or
That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.

(c) Witnesses’ signatures.–The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

Wills of Florida Non-Residents That Are Noncupative or Holographic

Second, the Florida appellate court considered section 732.502(2) of the Florida Probate Code, which relaxes the strict formalities required of wills for nonresidents. Section 732.502(2) reads:

(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.

Thus, if a nonresident of Florida executes a will that is valid under the laws of the state or country where executed, Florida will generally recognize that will.  But, there are two types of wills, even if executed by a nonresident, that are never valid in Florida – holographic wills and noncupative wills.

“Noncupative” is not defined by the Florida probate code.  The Florida appellate court cited to Black’s Law Dictionary, which defines a “noncupative will” as a “will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof.”  The classic noncupative will is a will declared by the testator to family and friends on the testator’s deathbed.  A holographic will is a handwritten will.

Notarial Wills of Non-Residents in Florida

The third provision of the Florida Probate Code considered by the Florida appellate court was section 733.205, Florida Statutes, regarding nonresidents’ notarial wills.  Section 733.205 reads:

(1) When a copy of a notarial will in the possession of a notary entitled to its custody in a foreign state or country, the laws of which state or country require that the will remain in the custody of the notary, duly authenticated by the notary, whose official position, signature, and seal of office are further authenticated by an American consul, vice consul, or other American consular officer within whose jurisdiction the notary is a resident, or whose official position, signature, and seal of office have been authenticated according to the requirements of the Hague Convention of 1961, is presented to the court, it may be admitted to probate if the original could have been admitted to probate in this state.

(2) The duly authenticated copy shall be prima facie evidence of its purported execution and of the facts stated in the certificate in compliance with subsection (1).

(3) Any interested person may oppose the probate of such a notarial will or may petition for revocation of probate of such a notarial will, as in the original probate of a will in this state.

As set forth above, the term “notarial will”  is not defined by the Florida probate code. Rather, a notarial will is a creature of civil law, and is a will dictated and taken down by a notary.

One of the important steps in creating a notarial will that is admissible in Florida is the signing of the will by the testator. The Argentine Will  did not comply with the formalities of Florida law, since it lacked Elena’s signature.  The Florida appellate court held that section 732.502(2)’s prohibition of noncupative wills does not bar all notarial wills, but does bar notarial wills that are unsigned by the testator.

The testator’s signature is of universal importance in both domestic and foreign probate laws, and thus this “reading of the statute honors the policy of comity reflected in section 733.205 by recognizing the validity of most notarial wills…” and “also honors the policy of limiting fraud and mistake reflected in section 732.502(1)’s strict formalities for wills in general and 732.502(2)’s exclusion of noncupative wills from acceptable foreign wills.”

The Florida appellate court ultimately determined that the Argentine Will was a notarial will, but was a type of notarial will that was noncupative because it was unsigned by Elena, the testator.  Because the Argentine notarial Will was a noncupative will, it could not be admitted to probate in Florida, and did not operate to revoke the New York Will.

The Florida appellate court closed its decision by noting that clarifying legislation would be beneficial, given Florida’s global community and marketplace.  Definitions of the terms “notarial,” “noncupative,” “holographic,” and “nonresident,” would aid the Florida probate courts in ensuring that testamentary intentions are strictly honored.

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.

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