Price v. Abate, — So.2d —-, 2009 WL 559908 (Fla. 5th DCA Mar 06, 2009)
In the linked-to case the 5th DCA broke new ground. The parties were litigating what the word “presence” means for purposes of witnessing a will under F.S. 732.502(1)(c):
Witnesses’ signatures.–The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
Apparently no one’s asked a Florida appellate court to rule on this issue before.
Based on the following testimony, the probate court concluded that even though the witnesses were in the same room as the testator when he signed the purported will, they weren’t in his “presence,” thus warranting summary judgment rejecting the will:
In seeking summary judgment, Flanigan’s heirs asserted that Price could not sustain her burden of proving that Flanigan’s purported lost will had been properly attested to. To support their claim, the heirs cited to the deposition testimony of the only living witnesses to the execution of Flanigan’s purported lost will, bank employees Dalila Ramos and Donna Fazio.
Ramos testified that Flanigan asked her to notarize a hand-written piece of paper which stated “that he was leaving basically everything that he owned to Fran Price.” Ramos testified that she did not remember if Flanigan signed the paper in her presence or not. Ramos further testified that after she notarized the document she called over a teller named Donna Fazio to act as a witness. Critical to this appeal, she further testified:
Q. Now, when you signed it, was Donna Fazio present?
* * *
Q. And Donna Fazio did not see you sign the document; is that correct?
A. That is correct.
Donna Fazio’s deposition testimony was consistent with the testimony submitted by Ramos. In that regard, Fazio testified that Ramos summoned her by using a phone intercom, and that Ramos asked her to witness a document:
Q. You say by the time you got there, everything was already signed?
A. Yes, sir.
Q. Now, did you see anybody sign?
Q. Were you present when anybody signed?
The trial court concluded that entry of summary judgment in favor of the heirs and against Price was warranted because the uncontradicted record evidence demonstrated that Ramos and Fazio did not sign in the presence of each other because Fazio was not in the presence of Ramos when Ramos signed the document.
On appeal the 5th DCA upheld the probate court’s ruling based on the following rationale:
Price challenges this ruling, conceding that there are no cases in Florida which expressly define the term “in the presence of each other” for purposes of the statute but claiming that, given the physical proximity of the two witnesses, the determination of this issue involves genuine issues of material fact which should be determined by the trier of fact after hearing the actual testimony of the witnesses. We disagree.
The decision issued by our Supreme Court in State v. Werner, 609 So.2d 585 (Fla.1992), supports the trial court’s ruling. In that case, the Court was asked to define the word “presence” for purposes of the lewd and lascivious act statute, section 800.04(3) of the Florida Statutes, which provides that any person who knowingly commits any lewd or lascivious act “in the presence of” any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree. The State argued that the plain and ordinary meaning of “presence” is “the part of space within one’s immediate vicinity.” Upon review, the Court rejected the State’s argument and concluded that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur.
Application of this reasoning to the instant case supports the trial court’s conclusion that the mere fact that Ramos and Fazio were in the vicinity of one another at the time Ramos signed Flanigan’s will was insufficient to satisfy the statutory requirement that Ramos sign the will in Fazio’s presence. Accordingly, we affirm the trial court’s ruling.
I think the 5th DCA got this one right, and I’m sure most Florida probate lawyers would agree with me. Being “present” as a witness when someone’s signing his will means more than being in the same room at the same time, the witness has to see the person sign his will, and understand in a general sense what the heck is going on. I think it’s also important to note that in a roundabout way the 1st DCA came to a similar conclusion in 2005 with respect to the minimum requirements for witnessing a will [click here], although that opinion wasn’t nearly as thoughtful and well-articulated as this one.