IN RE ESTATE OF SAMUEL B. CHARRY, DECEASED

Fla. 4th DCA | 1978-05-31
No. 77-713
DAUKSCH and MOORE, JJ., concur.
359 So. 2d 544 Florida District Court of Appeal, Fourth District (1978) Negative Treatment
Cited by 8 cases

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Synopsis

The Fourth District Court of Appeal affirmed the trial court's order denying a petition to revoke a codicil, holding that a will executed with a self-proof affidavit on the same document is valid even though the proper method involves separate execution followed by the addition of the affidavit. The court rejected the argument that witnesses must have specific intent to sign as witnesses rather than for testimonial purposes.


Holding

The court held the codicil validly executed and affirmed the trial court's order denying revocation. The court agreed that the proper method involves separate execution followed by addition of a self-proof affidavit but found this technical deviation did not invalidate the codicil. The court held that witnesses need not have any particular mental intent when subscribing a will; they need only perform the physical acts required by statute.


Headnotes

[1] A self-proving affidavit, when incorporated into a will, is not an improper part of the will, even if it is not a necessary component.

[2] The signatures of the testator and witnesses on a self-proof affidavit that is part of the same instrument as the will are valid signatures on the will.

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Key Quotes

“attestation clauses and self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts of it”

Establishes the court's holding that self-proof affidavits on the same document as the will do not invalidate the instrument

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Facts & Procedural History

The testator signed a codicil at its end, and immediately following his signature on the same paper was a fully executed self-proof affidavit in the f…

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Opinion of the Court
COWART, Jr., JOE A., Associate Judge.

COWART, Jr., JOE A., Associate Judge.

This is an appeal from an order denying a petition to revoke a codicil.

The testator signed at the end of the codicil. Immediately following his signature and on the same piece of paper was a fully executed “officer’s certificate” or self-proof affidavit in the exact form set forth in Section 732.503, F.S., 1975. There was no separate attestation clause and the two witnesses signed the self-proof affidavit along with the testator. The appellant urges that the self-proof statute contemplates that a will first be properly signed by the testator and witnesses and that it may then be made self-proving by the addition of a self-proof affidavit. We agree that is the proper method of execution but, nevertheless, affirm the order of the trial court.

Appellant cites many Texas cases1 that hold that the self-proof affidavit re lates to proof only and is not part of the will whether on the same instrument or attached as a separate document, and, therefore, the signatures of testator and witness on the affidavit are not on the will. In the case of In re Schiele's Estate, 51 So. 2d 287 (Fla.1951), the testator did not sign the form will on the line provided but signed in the attestation clause. While recognizing that the attestation clause was not a part of the will the court declined to hold the will invalid remanding it for a factual determination of whether the testator signed with testamentary intent. The better view is that attestation clauses and self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts of it. The Texas view places form above substance and we decline to follow it.

The appellant here argues that the phrase “attesting witness” includes not only the physical act of observing the testator sign his will and of the witness himself signing but requires the witness to have the mental intent to sign as a witness and that here the witnesses signed not as witnesses but for testimonial purposes only in order to avoid the legal necessity of later presenting evidence in court to prove the codicil. In the case of In re Lomineck’s Estate, 155 So. 2d 561 (Fla. 1st DCA 1963), the person who performed the act of signing an incapacitated testatrix’ name to the will added his own name with the prefix “per”. It was argued that that person signed only as the agent of the testatrix and not as a subscribing witness but the court held that he was an attesting and signing witness.

Section 732.502, F.S., 1975, requires the testator to sign his will at the end in the presence of at least two attesting witnesses who must sign in the presence of each other and in the presence of the testator. The testator must sign with testamentary intent and at the end of the will. Each witness must see the testator sign and each witness must sign in the presence of the testator and of the other witness. There is no requirement that the witnesses sign at any particular place or with any particular mental intent. To require that a witness have any specific mental intent when he subscribes a will would make the validity of every will subject to the testimony of any witness that he did not have the requisite particular intent when he signed. We decline to add this dangerous concept to the requirements of the statute.

AFFIRMED.

DAUKSCH and MOORE, JJ., concur. . McGrew v. Bartlett, 387 S.W. 2d 702 (Tex.Civ.App.1965); Boren v. Boren, 402 S.W. 2d 728 (Tex.Sup.1966); Cooper v. Liverman, 406 S.W. 2d 927 (Tex.Civ.App.1966); In re Estate of Pettengill, 508 S.W. 2d 463 (Tex.Civ.App.1974); Cherry v. Reed, 512 S.W. 2d 705 (Tex.Civ.App.1974); McLeroy v. Douthit, 535 S.W. 2d 771 (Tex.Civ.App.1976), affirmed 539 S.W. 2d 351 (Tex.Sup.1976).


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Citator

Cited By

  • State v. Werner, 609 So. 2d 585 (Fla. 1992)
    …ell, 140 Fla. 693, 192 So. 224 (1939) (presence of officer for purposes of a lawful misdemeanor arrest without a warrant requires that the misdemeanor must be actually detected by the officer by the use of one of his senses); In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978) (statutory requirement that testator must sign will in presence of two attesting witnesses interpreted to mean that each witness must see the testator sign). Florida Rule of Criminal Procedure 3.830 also provides that direct crim…
  • …ond issue we address is: If the trial court concludes that there were physical acts with the accompanying intention to revoke, what is the effect of the marks being solely on the self-proof portion of the will? As observed in In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978), a number of Texas cases hold that the self-proof affidavit relates to proof only and is not part of the will whether on the same instrument or attached as a separate document. We agree with the fourth district that: [*474] The b…
  • Simpson v. Clydia M. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1992)
    …he attestation clause or self-proving affidavit is not a necessary or essential part of a will, but when originally incorporated into one, it can be a part of it. See In re Estate of Dickson, 590 So. 2d 471 (Fla. 3d DCA1991); In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA1978). In In re Estate of Charry, two witnesses signed only the self-proving clause of a will but not a separate attestation clause. The court held they were effective witnesses to the will even though they signed in the wrong place. I…

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