Unsigned, “Notarial”, “Nuncupative” Will Violates Florida Probate Code, Third DCA Calling for Clarifying Legislation of the Probate Code’s Essential Terms

Posted on October 10, 2015

In Malleiro v. Mori, 2015 Fla. App. LEXIS 14475 (Fla. 3d DCA 2015) The Third DCA held that because a will executed in Argentina was unsigned, even though it was a notarial will, it was invalid under the Florida Probate Code. In the subject case, Elena Isleno (“Testator”) executed a valid will in New York five years before her death, which only distributed her real and personal property located in the United States.  Four months later, a second will was created for the Testator in Argentina.  The Testator while in Argentina orally provided her testamentary wishes to a notary who recorded them in the presence of three witnesses, and the Testator orally approved the typewritten will in the presence of the witnesses. The notary signed and stamped the will.  The testator and the witnesses did not sign the will.  The Testator was born in Argentina, but died in Florida.  The New York will and the will created in Argentina named different beneficiaries.  In addition, the will created in Argentina (unlike the New York will) distributed all of the Testator’s assets.

Manuel Angel Malleiro (“Appellant”) on behalf of the beneficiaries of the New York will filed a petition for administration of the New York will in Florida, on behalf of the beneficiaries of the New York will. Axel Mori, Martin Mori, and Patricia Corallo (“Appellees”) objected and filed a competing petition for administration of the subsequent Argentine will, on behalf of the beneficiaries of the Argentine will. After a hearing, the trial court admitted the Argentine will to probate. The court concluded that both wills complied with Florida law, but that the Argentine will revoked the New York will.

On appeal, the Third DCA decided whether the Argentine will could be admitted to probate under Section 732.502(1), Fla. Stat. which requires that a will be signed by the testator and the witnesses.  However, Section 732.502(2), Fla. Stat. recognizes as valid a foreign will of a nonresident, if the nonresident’s will is valid under the laws of the state or country where executed.  However, even when executed by a nonresident, Section 732.502(2) does not recognize two types of wills, holographic wills and nuncupative wills.  The Florida Probate Code does not define “nuncupative” wills.  Black’s Law Dictionary defines a nuncupative will as a “will made by the verbal declaration of Testator, and usually dependent merely on oral testament for proof.”  The Court noted that the classic nuncupative will is a deathbed declaration.

The Third DCA noted that the Probate Code recognizes a nonresidents’ “notarial will”.  See, Section 733.205, Fla. Stat.  It provides that a copy may be admitted to probate if the original is required to be retained in the foreign country and “if the original could have been admitted to probate in this state.”  As was the case with “nuncupative wills”, the term “notarial will” is also not defined.  The Third DCA stated a “notarial will” is a will dictated to and taken down by a notary.  The civil law notary plays a central role as they supervise its creation and permanently store the will. The Third DCA went to quote a treatise that surveyed the practices of different countries concerning notarial wills, with particular attention to the four stages commonly involved with the creation of a notarial will.  The third stages involves the notary reading the will aloud followed by the will being “signed by testator, notary and witnesses ….”  The Third DCA observed that “the treatise does not mention or acknowledge any type of notarial will that is not signed in some manner by the testator.”  The Third DCA went on to opine that “every notarial will is nuncupative: it is orally pronounced by the testator to the notary.” 

The Third DCA held that the Argentine will fails to comply with the formalities of Florida law because it lacks the testator’s and witnesses’ signatures.  They concluded that the Argentine will is a notarial will, but is a type of notarial will that is nuncupative because it is unsigned by the testator.  Even if the Testator was a nonresident of Florida, which was a disputed fact issue not resolved by the trial court, the unsigned Argentine will could not be admitted to probate in Florida.  As a result, it did not operate to revoke the New York will. 

The opinion closed with a discussion of the benefits of clarifying legislation. It addressed the status of Florida as a global community and marketplace, and the lure of Florida’s sunshine, coastlines and our low tax economy where personal income tax is barred.  “We owe it to them to ensure that their testamentary intentions are strictly honored regarding the disposition of their Florida property. This goal would be advanced by legislation providing definitions of some of the Probate Code’s essential terms.” Specifically, “notarial”, “nuncupative,” “holographic,” and “nonresident.”  This sounds like a mandate to the Real Property, Probate and Trust Law Section and/or the Elder Law Sections of the Florida Bar to advance the appropriate legislation.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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