JANE MANSON, APPELLANT,
v.
FREMONT B. HAYES, APPELLEE
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Jane Manson appealed the trial court's order refusing to admit Raymond M. Hayes' will to probate. The court affirmed, holding that the will failed to comply with statutory execution requirements because the trial court found credible evidence that the testator was not present when the will was signed, contrary to what Florida law required in 1971.
The trial court properly refused to admit the will to probate. The court found credible evidence that the testator was not present when the will was signed and did not acknowledge his signature in the presence of the witnesses, thus failing to comply with the statutory formalities required for valid will execution.
[1] A will must be signed by the testator or by another person in the testator's presence and by their direction.
[2] A testator must sign a will in the presence of at least two attesting witnesses who are present at the same time, or acknowledge their signature in their presence.
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Join FLexlaw to unlock all legal intelligence“It was the province of the trial judge to hear the evidence, assess the credibility of the witnesses, and resolve the conflict in testimony.”
Establishes that the trial court had authority and discretion to resolve the conflicting witness testimony and that appellate review is limited to whether competent substantial evidence supports the trial court's findings.
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Join FLexlaw to unlock all legal intelligenceAfter Raymond Hayes died, a will was found among his papers and a petition was filed to determine its validity. An evidentiary hearing revealed confli…
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PER CURIAM.
This is an appeal from an order refusing to admit the will of Raymond M. Hayes to probate. We affirm.
After Raymond Hayes’ demise, a last will and testament was found among his papers. A petition to determine the validity of the will was filed, alleging that the will had not been executed in accordance with the statutory requirements. The 1971 version of the Florida probate law, which was in effect at the time of execution, provided in part:
731.07 Execution of wills. — Every will, other than a nuncupative will, must be in writing and must be executed as follows:
(1) The testator must sign his will at the end thereof, or some other person in his presence and by his direction must subscribe the name of the testator thereto.
(2) The testator, in the presence of at least two attesting witnesses present at the same time, must sign his will or cause his name to be signed as aforesaid or acknowledge his signature thereto. § 731.07(1) & (2), Fla.Stat. (1971) (present version § 732.502, Fla.Stat. (1987)).
The trial court conducted an evidentiary hearing at which the testimony of the attesting witnesses was in direct and irreconcilable conflict.1 It was the province of the trial judge to hear the evidence, assess the credibility of the witnesses, and resolve the conflict in testimony. In re Estate of Richmond, 298 So. 2d 549, 550 (Fla. 2d DCA 1974). He did so. There is competent substantial evidence to support the conclusion reached.
The order under review is affirmed.2
. One of the witnesses testified that the testator was present at the signing, signed in the presence of the other subscribing witnesses, and acknowledged that the document was his will. The other two attesting witnesses who were in attendance testified that the testator was not present, did not discuss the will with them, and did not at that time, or on any other occasion, acknowledge his signature or indicate that he had caused his name to be signed to the will.
. The purpose of the statute is to assure not only that the signature on the will is that of the testator, but to provide reasonable assurance of the circumstances under which the signature was affixed to the document. See generally In re Estate of Olson, 181 So. 2d 642, 643 (Fla.1966). Where, as the court found here, the statutory formalities are not complied with, that assurance is missing.
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Allen v. Margarete Dalk, 826 So. 2d 245 (Fla. 2002)…ested will [*248] should not be admitted to probate because “[t]he obvious intent of the statute requiring the attestation of a will by at least two witnesses ... is to assure its authenticity and to avoid fraud and imposition.” See Manson v. Hayes, 539 So. 2d 27, 28 n. 2 (Fla. 3d DCA 1989) (noting that “[t]he purpose of the statute is to assure not only that the signature on the will is that of the testator, but to provide reasonable assurance of the circumstances under which the signature was affixed to th…
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Simpson v. Clydia M. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1992)…en in each other’s mutual presence as well as the testator’s, affixed their signatures as witnesses. Pursuant to the current Florida statute, it is essential for the witnesses to sign in the testator’s and each other’s presence. See Manson v. Hayes, 539 So. 2d 27 (Fla. 3d DCA1989); In re Estate of Kavcic, 341 So. 2d 278 (Fla. 1st DCA1977); Annotation, Who Constitutes the Presence of the Testator In the Witnessing of His Will, 75 A.L.R.2d 318, 335 (1961); I Redfern, Wills and Administration In Florida, paragr…
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Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005)…he statute governing the execution of will is to assure not only that the signature on the will is that of the testator, but to provide reasonable assurance of the circumstances under which the signature was affixed to the document. Manson v. Hayes, 539 So. 2d 27, 28 n. 2 (Fla. 3d DCA 1989). Thus, to satisfy the requirements of the statute, it is essential for the witnesses to sign both in the testator’s presence and in the presence of each other. Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1992). Se…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Est. of Magnus Ferdinand Olson, 181 So. 2d 642 (Fla. 1966)
- In re The Est. of Hugh N. Richmond, 298 So. 2d 549 (Fla. 2d DCA 1974)