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Price v. Abate - 9 So. 3d 37 (Fla. Dist. Ct. App. 2009)

Rule:

Section 733.502, Fla. Stat. (2005), provides that, among other things, it is essential to the validity of a will for the witnesses to sign in the testator's and each other's presence. The proponent of a will bears the burden of establishing prima facie its formal execution and attestation. Section 733.107(1), Fla. Stat. (2005). An improperly attested will can not be admitted to probate.

Facts:

Appellant Fran Price, the personal representative of Flanigan's "undiscovered will", alleged that Flanigan had executed a valid will but that it had not been found. Appellee intestacy heirs asserted that Price could not sustain her burden of proving that the decedent's purported lost will had been properly attested to under § 732.502 Fla. Stat. (2005). 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--two bank employees who witnessed the will. The trial court issued a final order determining that Flanigan had died intestate. The trial court concluded that entry of summary judgment in favor of the heirs and against Price was warranted because the uncontradicted evidence demonstrated that the bank employees did not sign the purported will in the presence of each other as one employee was not in the presence of the other employee when the employee signed the document.

Issue:

Did the trial court err in concluding that entry of summary judgment in favor of the heirs and against purported person representative Price was warranted because the uncontradicted record evidence demonstrated that the bank employees did not sign the purported will in the presence of each other?

Answer:

No

Conclusion:

The appellate court focused on the trial court's determination that there were no disputed issues of material fact and that, as a matter of law, Flanigan died intestate because the lost will which appellant Price was seeking to enforce was invalid because it had not been executed with the formalities required by state law. The appellate court affirmed the trial court's conclusion that the mere fact that the two bank employees were in the vicinity of one another when one employee signed the decedent's will at the bank was insufficient to satisfy the statutory requirement that the employee signed the will in the other employee's presence.

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