Do Witnesses to a Will Actually Have to Testify in Court?

Florida law has strict requirements when it comes to witnessing a last will and testament. The person executing the will–who is known as the testator–must sign the written will in the presence of at least two witnesses. The witnesses can be effectively anyone. State law only requires that they be a “competent” person, i.e., they are of sound mind. While it is often common practice to ask disinterested persons to serve as witnesses, that is not a legal requirement.

Not only must the witnesses see the testator sign the will. The witnesses must also sign the will in the presence of each other. In other words, you cannot have one witness sign the will now and let the second witness sign later. All three signatures must be executed at the same time in the same place.

Will Rejected After Witnesses Could Not Recall Testator’s Signature

The main reason for Florida’s strict witnessing requirements is to protect against will forgery. Obviously, when a will is filed for probate the testator is deceased. So they are unavailable to prove the will’s validity. The probate court may therefore need to call upon the witnesses to prove the will.

And yes, that often means the witnesses must testify that they witnessed the will. One way to avoid this is for the testator and the witnesses to sign the will in the presence of a Notary Public. The Notary can then prepare and sign an affidavit attesting to the execution of the will. This affidavit makes the will “self-proving,” since the Notary is authorized by the state to attest to official acts.

Absent such an affidavit, however, it is often left to witness testimony to prove–or disprove–a will. Indeed, there have been cases where insufficient witness testimony led to the rejection of a will. One such case in Florida was Jordan v. Fehr, a 2005 decision from the Florida First District Court of Appeal. In that case, the daughter of a deceased man contested the will filed by her later father’s girlfriend. (The will left most of his estate to her.)

The daughter insisted the will was a forgery. The First District ultimately held the will was invalid due to issues with the witnesses. Specifically, one of the purported witnesses testified in a deposition that he did not personally see the decedent sign the will. He acknowledged signing a paper that had been put in front of him. But he could not recall whether the decedent himself was present. The second purported witness similarly testified that he could not remember if the first witness was present when he signed the alleged will. Given this testimony, the appellate court found the will “was not validly executed” and thus should not have been admitted to probate.

 Contact Florida Will Litigation Attorney Mark R. Manceri Today

While most wills are admitted to probate without incident, there are situations where an interested person may need to challenge the validity of a will. If you are involved in such a dispute, our Pompano Beach estate and trust litigation lawyer can advise you on the law. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.

Source:

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