Legal Question in Wills and Trusts in Florida
Will not notarized and we can't find the witnesses
My uncle died recently. He left a will that was signed and witnessed. We can not find the witnesses. He left most of his estate to three of his nephews and smaller amounts to some other family members. His two sisters say that they are going to contest the will as a forgery. They want to be declared sole heirs as his closest relatives.
The only people that think the will is a forgery are his sisters. His sisters have no proof of forgery. They just want everything. Everyone else in the family thinks the will is valid and they are willing to sign sworn affadavits stating that.
If we can not find the witnesses will the will be declared invalid or can the family members sworn affadavits validate the will? Does the burden of proof lie on his sisters to prove forgery?
2 Answers from Attorneys
Re: Will not notarized and we can't find the witnesses
Check out section (3) of the following Florida statute:
The 2003 Florida Statutes
Title XLII
ESTATES AND TRUSTS Chapter 733
PROBATE CODE: ADMINISTRATION OF ESTATES
733.201 Proof of wills.--
(1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof.
(2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.
(3) If it appears to the court that the attesting witnesses cannot be found or that they have become incompetent after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent.
Re: Will not notarized and we can't find the witnesses
If the witnesses cannot be found, the affidavit of the personal representative named in the will, that the writing in question is the last will and testament of the decedent can serve as proof thereof; if the personal representative's affidavit is not available, the affidavit of any person having no interest in the estate, that he or she believes the writing in question to be the last will and testament of the decedent can serve
as proof thereof. The sisters who would allege forgery have the burden of proof thereof. See Section 733.201(3) Florida Statutes (2003)
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