Is Your Client’s Self-Proof Affidavit Valid?
PROBATE CORNER
ARTICLE: IS YOUR CLIENT'S SELF-PROOF AFFIDAVIT VALID?
During the execution ceremony, your staff witnessed and notarized the testator's signature. The Will contains a self-proof affidavit. Is the self-proof affidavit valid?
What is a self-proof affidavit and why is it important? A self-proof affidavit is a statutory procedure to ensure the authenticity of the testator's signature and his Will. A valid self-proof affidavit allows for the admission of the Will to probate without further proof, i.e., without the witnesses testimony. Refer to §733.201(1), Fla. Stat.. Florida?s self-proof statute reads in relevant part as follows:
§ 732.503. Self‑proof of will
(1) A will or codicil executed in conformity with s. 732.502 may be made self‑proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer's certificate attached to or following the will, in substantially the following form:
STATE OF FLORIDA)
COUNTY OF ______ )
I, __________, declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.
__________
Testator
We, __________and__________, have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator's will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.
__________
Witness
__________
Witness
Acknowledged and subscribed before me by the testator, (type or print testator's name), who is personally known to me or who has produced (state type of identification‑‑see s. 117.05(5)(b)2.) as identification, and sworn to and subscribed before me by the witnesses, (type or print name of first witness) who is personally known to me or who has produced (state type of identification‑‑see s. 117.05(5)(b)2.) as identification and (type or print name of second witness) who is personally known to me or who has produced (state type of identification‑‑see s. 117.05(5)(b)2.) as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on (date).
(Signature of Officer)
The Florida Probate Code is modeled after the Uniform Probate Code. See Teague v. Estate of Hoskins, 709 So.2d 1373 (Fla. 1998) and the Uniform Probate Code §2-504. In construing a statute modeled after a uniform law, it is pertinent to resort to the holdings in other jurisdictions where the act is in force. Teague, supra. When a statute has its origin in a uniform law, it should receive a uniform interpretation in all adopted states if the beneficial purpose of uniformity is to be served. See In re Estate of Swanson, 397 So.2d. 465 (Fla. 2nd DCA 1981).
An affidavit attached to a Will that is in substantial compliance with the affidavit form set forth in §732.503, Fla. Stat. makes the Will self-proved. For this purpose, an affidavit that is subscribed and acknowledged by the testator and subscribed and sworn to by the witnesses would suffice as being in substantial compliance. See Estate of Graham, 69 S.W.3d 598 (Texas 13th Dist. 2001), and Tex. Prob. Code §59(b).
The recommended procedure is for the notary to ask of the witnesses the following question prior to their signing the self-proof affidavit:
Q. ''Do you swear (or affirm) that__________ (testator) declared the instrument to be his/her will and signed it in your presence and that each of you signed the instrument as a witness in the presence of_________(testator) and of each other"?
Refer to §§732.503 and 90.605, Fla. Stat., and The Notary View, Office of the Governor, Issue 1, at 1 (1997).