Rizk v. Rizk, — So.3d —-, 2018 WL 6321228 (Fla. 3d DCA December 4, 2018)
In civil-law jurisdictions (such as Haiti) wills are prepared under the supervision of a notary acting in a quasi-judicial capacity that has no counterpart in common-law jurisdictions (such as Florida). We refer to these creatures of civil law as “notarial wills.”
Florida’s Probate Code refers to notarial wills, but doesn’t define them. For a good working definition you’ll want to turn to Comparative Succession Law, Testamentary Formalities (at pg. 449), which describes the four stages commonly involved in their creation as follows:
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.
Is a notarial will that’s valid in Haiti also valid in Florida? YES
As described by the 3d DCA in the linked-to case above, the Haitian will at issue in this case fits squarely within the classic definition of a notarial will.
[In 2013] the decedent prepared a will in accordance with Haitian law, which authorizes a testator to dictate the will to a Haitian notary who must reduce it to writing and read it back to the testator. The will is then executed by the testator, the notary and four witnesses. The notary then registers the will with the Haitian Tax Office and maintains the original in his or her office.
The testator at the center of this case is described by the 3d DCA as being a “native of Haiti.” I’m guessing that means he was domiciled in Haiti at the time of his death, although the 3d DCA doesn’t tell us explicitly. If the testator was domiciled in Haiti, one would assume any challenge to the validity of his will should have been prosecuted in Haiti. That didn’t happen, and based on that uncontested fact, the will was accepted as valid in Florida. So saith the 3d DCA:
In support of his motion for summary judgment, Appellee, inter alia, provided affidavits by the notary and a Haitian attorney attesting to the 2013 will’s validity under Haitian law. In the Haitian attorney’s affidavit, she states that, to her knowledge, no court action has been filed in Haiti to contest the 2013 will’s validity, and therefore, it remains valid under Haitian law. It appears from the record that not only did Appellant not challenge the 2013 will’s validity in Haiti, but that she already is receiving the benefits of the 2013 will as one of its beneficiaries.
Section 732.502(2) provides, in pertinent part: “Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida … is valid as a will in this state if valid under the laws of the state or country where the will was executed.” § 732.502(2), Fla. Stat. (2013). Appellee provided sufficient and undisputed evidence at summary judgment that the 2013 will is valid in Haiti.
Can you probate notarial wills in Florida? YES
A key characteristic of notarial wills is that the originally signed copy is supposed to stay with the notary who supervised its creation. Since Florida law usually requires the production of original wills for probate, the two systems of law are in conflict. The original notarial will can’t remain in the foreign notary’s custody (as required by local civil law), and also delivered for probate (as required by Florida law). Fortunately, this conflict’s been resolved by statue.
As explained by the 3d DCA in Malleiro v. Mori (which I wrote about here), section 733.205 of Florida’s Probate Code provides a mechanism of probating notarial wills by allowing a copy to be admitted to probate in this state if the original is required to be retained in the foreign country and “if the original could have been admitted to probate in this state.” Problem solved.