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Can a Notary Serve as a Witness to a Will or Trust in Florida?

Posted January 20, 2019 in Florida Probate Litigation, Florida Trust Litigation

Florida Probate and Trust Litigation Blog -  Can a Notary Serve as a Witness to a Will or Trust in Florida?

In a prior blog post, we discussed the common methods of challenging a Will in Florida. One of those ways, is if the will fails to comply with Florida's statutory requirements for a validly executed will:

The Statutory Formalities can be found in Fla. Stat. § 732.502, which provides in pertinent part as follows:

1. The will must be in writing.

2. The will must be signed by the testator (or at the testator’s direction)

3. In the presence of two witnesses, and

4. The witnesses must sign the will in the presence of each other and the testator.

It is common for a will to include what is called a “self-proving affidavit.” This is a document that is signed under oath, and is prima facie proof that the will was executed with the proper formalities.

 Although a will is not technically required to be notarized, many attorneys insist on having the signature be notarized. This is often a simple convenience, since many attorneys also serve as notaries. 

If you have ever looked at a will template from a Florida attorney, you have likely seen two signature lines--one for each witness. We were recently asked an interesting question:

What happens if a Will meets all of Florida's requirements, except there is no witness signature as the "Second witness." Is the will still valid if it was notarized?

The answer is YES! A notary can count as the second witness, even if they did not sign in that capacity on the instrument. But, the notary must have signed in the presence of the other witness and the testator in order to be valid, as required by 732.502. 

Florida's Fifth District Court of Appeals addressed this issue in back in 1992 in the case, Simpson v. Williamson, 611 So.2d 544, 546 (Fla.App. 5 Dist.,1992). In that case, the court stated the following:

“It is well established that the execution of a will may be valid, even though a required witness signs in a capacity other than that of a witness.1 In a number of cases, a notary has been held to be a valid witness to the execution of a will, where such person could have served as a witness, under the circumstances, had he signed in that capacity. See Annotation, Wills: Character as Witness of One Who Signed Will For Another Purpose, 8 A.L.R. 1075 (1920); Tyson v. Utterback, 122 So. 496 (Miss.1929).”

In 2015, the Fourth District Court of Appeal reiterated the rule set forth in Simpson in Helfenbein v. Baval, 157 So. 3d 531, 533 (Fla. 4th DCA 2015).
It is important to note that, at least as to one secondary source, the notary serving as the second witness does not present a valid self-proving will. Practice Under the Florida Probate Code, PPC FL CLE-21-1.

About Our Firm

At PersanteZuroweste, our lawyers handle the complexities of Florida Probate and Trust Litigation, including challenges to wills and trusts. If you think you need to speak with a probate or trust litigation lawyer in Pinellas County, Florida, please give our firm a call. We can be reached at (727) 796-7666.