As long as we’ve had probate courts, people have been trying to figure out how to avoid them. In common-law jurisdictions like Florida, the most common technique is to use non-probate assets that automatically transfer at death (known as the nonprobate revolution, it’s a trend that’s been accelerating for decades).
In civil-law jurisdictions (i.e., all of Latin America) and mixed civil-law jurisdictions (like Quebec, Louisiana and Puerto Rico), they’ve come up with another way to avoid probate, and it’s called the “notarial will.”
What’s a “notarial will”?
Civil-law notaries, or “Latin” notaries, act in a quasi-judicial capacity when they’re involved in the preparation and execution of a person’s will. Which means that once your will’s been authenticated by a civil-law notary, you usually don’t need a probate court to do it over again after you’ve died. Bottom line: no probate.
What makes notarial wills “tick” is the level of authority a notary’s vested with in most civil-law jurisdictions, as noted by the 3d DCA:
The main characteristic of a notarial will is the central role played by the civil law notary in supervising the creation of the will and permanently storing the will. When performing this task, the civil law notary is acting in a quasi-judicial capacity in a manner that has no counterpart in common law jurisdictions and which should not be confused with the ministerial functions of a common law notary public. See Thomas A. Thomas & David T. Smith, Florida Estates Practice Guide, § 7.04(5) (2015).
But for this system to work, the notary’s required by law to retain custody of the original document. Here’s how this point was explained in In Defense of Notarial Wills, an article discussing notarial wills in Quebec:
[The notary] is required by the notarial code to retain the original will in a vault having maximum fire proof standards, burglar and dampness resistance. Therefore, the original is always available and cannot become lost, destroyed or mislaid. . . . Certified copies may be obtained from the notary or the depositary of his records with no other formality. The original will is never delivered except upon Court order in unusual circumstances, e.g. as evidence when the validity of its execution is questioned.
Do notarial wills work in Florida?
So here’s the problem. In common-law jurisdictions like Florida a court usually won’t validate/probate your will unless the original’s been deposited with the court. Copies don’t work unless you overcome the very tough “lost will” presumption of revocation (see here). This common-law emphasis on original documentation creates a fundamental conflict with a civil-law notary’s duty to retain custody of original wills, again as noted in In Defense of Notarial Wills:
Since the common law requires production of the original document for probate, the two systems of law contradict. The original notarial will cannot remain in the notary’s repertoire as required by . . . law and also be delivered for probate elsewhere.
What to do? Follow the steps laid out in F.S. 733.205, Florida’s specifically designed mechanism for dealing with foreign notarial wills. The statute lets you use an authenticated copy of a foreign notarial will “if the original could have been admitted to probate in this state.” In other words, all this statutory fix is supposed to do is let us use copies to address a civil-law notary’s duty to retain custody of his original documents, it’s NOT supposed to lower the standard for what kind of will is otherwise valid in Florida. It’s this last point that’s at the heart of the 3d DCA’s ruling in this case.
Malleiro v. Mori, — So.3d —-, 2015 WL 5714701 (Fla. 3d DCA September 30, 2015):
This case involves an Argentine notarial will that was apparently accepted as valid by an Argentinian court. The notarial will was typed up and signed by the notary, but it wasn’t signed by the testatrix or her witnesses, as explained by the 3d DCA:
The Testator orally pronounced her testamentary wishes to a notary who transcribed them. The Argentine will sets forth that the Testator made her attestations before the notary in the presence of three witnesses who were identified by name, address, and national identity card number. The Argentine will explains that the notary typed up the testamentary wishes and presented the typed document to the Testator, who declined to read it. The document was then read back to the Testator, who orally approved it in the presence of the witnesses. The notary signed and stamped the will, but the Testator and the witnesses did not sign it.
The Argentine will revoked a prior will singed in New York that favored a different group of beneficiaries. So which will’s valid matters. A few years after the Argentine will was created, the testatrix moved to Miami where she died owning property both in the U.S. and Argentina. The probate court in Miami ruled the Argentinian will was valid — even though it wasn’t signed by the testatrix.
The general rule in Florida is that we’ll accept the validity of a will created by a nonresident anywhere else on the planet, as long as one non-negotiable, bare minimum requirement is met: it’s signed by the testator. Under F.S. 732.502(2), oral (i.e., nuncupative) wills aren’t valid in Florida under any circumstances. And it doesn’t matter how strong the evidence is that the foreign will accurately reflects a person’s testamentary intent, or even if a court in another jurisdiction’s blessed it (as I reported here in a case involving an unwitnessed holographic will that was approved by court order in Colorado but rejected in Florida), if the will’s not signed, it’s not going to fly in Florida. But F.S. 732.502(2) shouldn’t be a problem for most notarial wills because the norm seems to be that these wills are always signed, as noted by the 3d DCA:
A treatise that surveyed the practices of different countries concerning notarial wills noted four stages commonly involved in the creation of a notarial will:
First, the testator makes an oral declaration of the will to the notary and two witnesses. Second, the notary (or an assistant) reduces the will to written form. Third, after being read aloud by the notary, the will is signed by testator, notary, and witnesses, with the notary adding information about the execution, including, usually, its date and place and the names of witnesses. Finally, the will is retained by the notary and, in some countries, registered in a central register.
1 Kenneth G.C. Reid, Marius J. de Wall & R. Zimmerman, Comparative Succession Law, Testamentary Formalities 449 (2011). Significantly, according to this treatise, the required third step in the creation of a notarial will is the signing of the will by the testator. Indeed, the treatise does not mention or acknowledge any type of notarial will that is not signed in some manner by the testator. Id.
Can a written will still be considered an invalid oral will?
Whether the Argentine notarial will at issue in this case is valid or not depends on whether a written will that’s not signed by the testator is still considered to be an invalid oral will. At the trial court level the argument seems to have been that since the will is in writing, it’s not an invalid oral will. The challengers argued that if it’s not signed, it’s an oral will — even if the will’s in writing. Here’s how this argument was reported by the DBR in Which Will Work? Court Chooses New York Version Over Argentina:
“This will certainly was reduced to writing, so it wouldn’t meet the definition of a nuncupative will,” said attorney Sergio Mendez, who represented the heirs under the second will.
Mark Hasner, the attorney for the New York beneficiaries, disagreed.
“Florida law is clear that nuncupative wills are not admissible,” he said. “The testator never signed her Argentinean will and therefore it fits into the definition.”
By the way, Florida courts have dealt with this kind of mixed oral/written will argument in the past. A will can be in writing and still contain an invalid oral directive that’s unenforceable. See Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1st DCA 1994). On the other hand, just because a will contains a reference to unstated oral instructions, doesn’t make it invalid, as the 3d DCA held in Glenn v. Roberts (see here). In this case the 3d DCA focused on the fact that the will wasn’t signed by the testatrix, ultimately ruling against it. Here’s why:
In one sense, every notarial will is nuncupative: it is orally pronounced by the testator to the notary. . . . Nevertheless, there would be no point to recognize foreign notarial wills in section 733.205 if they were all barred by the prohibition of nuncupative wills in section 732.502(2). We decline to interpret these provisions in a manner that renders one of them a nullity. . . . Instead, we hold that section 732.502(2)‘s prohibition of nuncupative wills does not bar all notarial wills, but does bar notarial wills that are unsigned by the testator. We reach this conclusion based upon the near universal emphasis in both foreign and domestic probate laws on the importance of the testator’s signature. This reading of the statute honors the policy of comity reflected in section 733.205 by recognizing the validity of most notarial wills, almost all of which are apparently signed by the testator according to the authorities disclosed by our research. It also honors the policy of limiting fraud and mistake reflected in section 732.502(1)‘s strict formalities for wills in general and 732 .502(2)‘s exclusion of nuncupative wills from acceptable foreign wills.
Lesson learned? Think global, act local:
Florida is a hub for international business and investment. Which means a lot of people own property in Florida, but reside and work in another state or country, frequently owning property in several jurisdictions. So it shouldn’t come as a surprise to anyone that multi-jurisdictional estates (be it the state-to-state or country-to-country variety) are a large part of our practice here in Florida. This case highlights what can go wrong when someone has a will prepared back home, and assumes it’ll automatically work in Florida too. It ain’t necessarily so. When in doubt, the safe bet is to simply sign a new will in Florida drafted by a Florida lawyer who knows what he’s doing. A little bit of collaboration with our non-U.S. brethren is probably a good idea too, as noted in a DBR report on this case entitled Which Will Work? Court Chooses New York Version Over Argentina:
Hasner said the opinion . . . underscored the importance of collaboration when it comes to estate planning for people like Isleno, who had property in two countries. “I think the big takeaway is estate planning lawyers need to have communication with the offshore planners as well,” he said.
By the way, if you’re looking for an easy way to meet top international attorneys (and just about anyone else who makes a living working with international estate planning clients), your best bet is to join your nearest STEP branch. I’ve been a member of the STEP Miami Branch for some time. If you have any interest whatsoever in international trusts and estates matters, STEP is where you want to be.
A Florida Bar subcommittee was empaneled to study the legislative recommendations made by the 3d DCA in the Mori case. The subcommittee produced an excellent white paper that ultimately decided no legislative changes were necessary. If you want to make sense of the operative statutes, this white paper is gold.