IN RE ESTATE OF ALEK G. LUNGA, DECEASED
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The heirs of Alek G. Lunga challenged the probate of a will dated 1951 that was not discovered until 1969, arguing the signatures were forged. The Florida appellate court affirmed the trial judge's decision to admit the will to probate, finding that eyewitness testimony and circumstantial evidence of the decedent's intent sufficiently supported the will's authenticity over the heirs' handwriting expert testimony.
The court affirmed the trial judge's decision to admit the will to probate, holding that eyewitness testimony from Mrs. Mason, combined with the decedent's 1962 affidavit indicating Maria as his sole heir, sufficiently established the will's authenticity and the decedent's testamentary intent. The court held that handwriting expert testimony standing alone cannot overcome eyewitness testimony concerning the validity of signatures on a will.
[1] The testimony of handwriting experts alone is not legally sufficient to overcome the testimony of eyewitnesses to a will concerning the validity of signatures.
[2] A trial court's determination of witness credibility and the weight of evidence is solely within its province and will not be re-evaluated by an appellate court.
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Join FLexlaw to unlock all legal intelligence“the testimony of handwriting experts standing alone is not legally sufficient to overcome the testimony of eyewitnesses to a will concerning the validity of the signatures on the will”
Establishes the governing legal standard that eyewitness testimony to will execution is superior to handwriting expert testimony when they conflict
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Join FLexlaw to unlock all legal intelligenceAlek G. Lunga died on January 23, 1964, leaving two daughters and a son, Gavriel, as heirs at law. A will dated May 8, 1951 was not discovered until 1…
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Appellant, the heirs at law of the decedent, seek review of the trial judge’s denial of their petition to revoke probate of the decedent’s will.
Decedent, Alek G. Lunga, died on January 23, 1964 and left as his heirs at law two daughters and a son Gavriel. A will dated May 8, 1951 was allegedly left by decedent, but it was not discovered or deposited with the County Judge’s Court until 1969. The provisions of this will left decedent’s entire estate to Gavriel’s daughter Maria and nothing to the appellants or Maria’s father. Appellants sought to discredit the will, and at trial their primary witnesses were two handwriting experts who testified that the decedent’s signature, as well as every other signature on the will, was forged. Appellee’s principal witness was the widow of Henry A. Mason, a witness to the will. Mrs. Mason stated that she was present when the will was signed by decedent and the three witnesses to the will, and that all the signatures were proper. This appeal followed the lower court’s order admitting the will to probate.
The thrust of the appellants’ brief is directed to the sufficiency of the evidence before the trial court to support the denial of their petition for revocation of the will. They challenge the preparation and late discovery of the will as well as the genuineness of the testator’s and witnesses’ signatures appearing on the will.
Admittedly the subject will was a poorly drawn document and not every aspect of its execution is clear, but the evidence in support of its authenticity satisfies this court that the will is a true representation of the decedent’s testamentary intent.
There are two extremely persuasive items of evidence in support of the will. The first is an affidavit executed by the decedent in 1962 for the purpose of showing his ability to support Maria if she was granted permission by the United States Immigration and Naturalization Service to enter the United States. The affidavit, sworn to by the decedent, states that Maria Lunga will not become a public charge in any state, county, or municipality if admitted as a permanent resident into the United States. Decedent, in his affidavit, described several parcels of real property of which he was the owner, and stated that Maria is the sole heir of all these properties.
The second item of evidence that is most convincing is the testimony offered by Mrs. Grace Mason, the widow of Henry A. Mason, one of the witnesses to the subject will. Mrs. Mason stands as a disinterested party before this court, and stated that she was an eyewitness when the will was executed by the decedent and all the witnesses. Although this testimony is contradicted by the appellants’ handwriting experts, we follow the rule set forth in the case of In re: Krugle’s Estate, Fla.App.1961, 134 So.2d 860, to-wit: the testimony of handwriting experts standing alone is not legally sufficient to overcome the testimony of eyewitnesses to a will concerning the validity of the signatures on the will. See also Fraser v. Lewis, Fla.App. 1966, 187 So.2d 684.
*807The trial judge, as the trier of fact, was presented with all the evidence, he had the opportunity to watch the witnesses and their demeanor, weigh the evidence accordingly, and after careful consideration of all the evidence he rendered the decision of the court. In view of the evidence before him the judge admitted the will to probate. While the evidence may be challenged as being inherently incredible and improbable, this court cannot extend to a re-evaluation of the evidence in arriving at a conclusion of improbability. Westerman v. Shell’s City, Inc., Fla.1972, 265 So.2d 43. The credibility of witnesses and the weight to be given evidence is solely a matter for the lower court to determine, In re Estate of Balch, Fla.App.1968, 215 So.2d 343, and it is not the province of a reviewing court to substitute its judgment for the trier of fact. Becklin v. Travelers Indemnity Co., Fla.App.1972, 263 So.2d 629; Griffith Services, Inc. v. Walter Kidde Constructors, Inc., Fla.App. 1972, 262 So.2d 240.
Consequently, the trial judge’s decision denying the petition to revoke probate of the decedent’s will is affirmed.
Affirmed.
CHARLES CARROLL, J., dissents.
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Raulerson v. Metzger, 375 So. 2d 576 (Fla. 5th DCA 1979)…andwriting expert as to the authenticity of a signature standing alone is not legally sufficient to overcome the testimony of eyewitnesses to the signing of a document concerning the validity of the signature on that document. In re Estate of Lunga, 271 So. 2d 805 (Fla. 3d DCA 1973). In the instant case, two financially disinterested parties, as well as a notary public, testified under oath that they witnessed the execution of the challenged conveyance by the decedent. In contrast, testimony was offered at tr…
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In re Est. of Alek G. Lunga v. Kruglak, 298 So. 2d 420 (Fla. 3d DCA 1974)…of the deceased was filed by appellee George Sha-mas, as guardian of Maria Lungu. After a hearing was held thereon, the probate judge on March 29, 1972 entered an order admitting the will to probate. That order was appealed and this court affirmed (271 So. 2d 805). A petition for writ of certio-rari was filed in the Florida Supreme Court and was denied on April 18, 1973. In 1973, appellant had her competency restored and was appointed executrix pursuant to the 1951 probated will. Thereupon, after nine years,…
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In re Est. of Alek G. Lunga, 277 So. 2d 786 (Fla. 1973)…Certiorari denied. 271 So. 2d 805. ROBERTS, Acting C. J., and ERVIN, ADKINS, BOYD and McCAIN, JJ., concur.…
Authorities Cited
- Westerman v. Shell's City, Inc., 265 So. 2d 43 (Fla. 1972)
- Becklin v. The Travelers Indem. Co., 263 So. 2d 629 (Fla. 1st DCA 1972)
- Fraser v. Lewis, 187 So. 2d 684 (Fla. 3d DCA 1966)
- In re Est. of Frank J. Krugle v. Bobier, 134 So. 2d 860 (Fla. 2d DCA 1961)
- Griffith Servs., Inc. v. Walter Kidde Constuctors, Inc., 262 So. 2d 240 (Fla. 1st DCA 1972)
- In re Est. of Ralph E. Balch, 215 So. 2d 343 (Fla. 4th DCA 1968)