Charry's Estate, In re, 77-713
| Decision Date | 31 May 1978 |
| Docket Number | No. 77-713,77-713 |
| Citation | 359 So.2d 544 |
| Parties | In re ESTATE of Samuel B. CHARRY, Deceased. |
| Court | Florida District Court of Appeals |
Evan J. Langbein of Dubbin, Schiff, Berkman & Dubbin, Miami, for appellant.
Howard L. Kuker of Trager & Schwartz, Miami Beach, for appellee.
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 cases 1 that 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, 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...
To continue reading
Request your trial
-
Wich v. Fleming
...In re Estate of Cutsinger, 445 P.2d 778 (Okl.1968); Matter of Estate of Petty, 227 Kan. 697, 608 P.2d 987 (1980); In re Estate of Charry, 359 So.2d 544 (Fla.App. 4th Dist.1978). The Oklahoma and Texas Probate Codes have virtually identical self-proving provisions; however the Oklahoma Supre......
-
Will of Ranney, Matter of
...like signatures on the attestation clause, satisfy the requirement that the signatures be on the will. See In re Estate of Charry, 359 So.2d 544, 545 (Fla.Dist.Ct.App.1978) (witnesses' signatures on self-proving affidavit on same page as testator's signature satisfied attestation requiremen......
-
Will of Ranney, Matter of
...3B:3-2, has been considered in other jurisdictions. Compare, In re Estate of Cutsinger, 445 P.2d 778 (Okla.1968); Estate of Charry, 359 So.2d 544 (Fla.Dist.Ct.App.1978); Matter of Estate of Petty, 227 Kan. 697, 608 P.2d 987 (1980), which adopt that principle, with Boren v. Boren, 402 S.W.2d......
-
Werner v. State, 90-0686
...witnesses." This court has interpreted that section to mean that "each witness must see the testator sign." In re Estate of Charry, 359 So.2d 544, 545 (Fla. 4th DCA 1978) (emphasis added). Both the criminal and civil standard jury instructions contain the phrases "in your presence" and "in ......
-
The 'void' in Florida's will revocation statutes.
...360 N.Y.S.2d 761, 762 (N.Y Surr. Ct. 1974). (45) Dickson, 590 So. 2d at 472. (46) Id. (47) Id. at 473 (citing In re Estate of Charry, 359 So. 2d 544 (Fla. 4th D.C.A. (48) Id. (citing In re Estate of Charry, 359 So. 2d 544 (Fla. 4th D.C.A. 1978)). (49) Kronauge v. Stoecklein, 293 N.E.2d 320,......