## Facts

- Elena Isleno, born in Argentina, died in Florida at age 79 owning property in the United States and Argentina.
- About five years before her death, Isleno executed a New York will with American formalities, including her signature and subscribing witnesses.
- The New York will expressly addressed only Isleno’s real and personal property located in the United States and complied with Florida execution formalities.
- Approximately four months later, Isleno executed an Argentine instrument described as a notarial will.
- In Argentina, Isleno orally stated her testamentary wishes to a notary, who transcribed and typed them.
- The typed document was presented to Isleno; she declined to read it, it was read aloud to her, and she orally approved it in the presence of three identified witnesses.
- The notary signed and stamped the Argentine instrument; Isleno and the witnesses did not sign it.
- The Argentine instrument purported to dispose of all assets and included a clause revoking any prior inconsistent testamentary instruments.
- The beneficiaries under the New York will and the Argentine instrument did not overlap.
- After Isleno’s death, a beneficiary under the New York will petitioned in Florida to administer that will; beneficiaries under the Argentine instrument objected and sought administration of the Argentine instrument.
- The probate court admitted the Argentine instrument to probate in Florida and held it revoked the New York will; the New York will beneficiary appealed.

## Issues

1. Whether an Argentine notarial instrument that was orally declared and transcribed by a notary but not signed by the testator or witnesses is admissible to probate in Florida as a valid foreign will.
2. If the Argentine instrument is inadmissible, whether it can nonetheless revoke the earlier New York will governing U.S. property.

## Decision

- The appellate court reversed the order admitting the Argentine instrument to probate.
- The court held the Argentine instrument, though considered notarial under Argentine law, was treated in Florida as a prohibited nuncupative will because it was unsigned.
- Because the Argentine instrument was not admissible to probate in Florida, it could not revoke the New York will as to the decedent’s U.S. property.
- The New York will remained controlling for disposition of property administered in Florida.

## Legal Principles

- Florida recognizes a foreign will executed by a nonresident as valid if valid where executed, but not if it is holographic or nuncupative under Florida law. § 732.502(2), Fla. Stat.
- A testamentary disposition that is oral in character and not signed by the testator (and not subscribed by witnesses) may be classified as a nuncupative will for Florida probate purposes, even if authenticated by a notary under foreign law.
- Florida requires signed written wills meeting statutory formalities for domestic execution. § 732.502(1), Fla. Stat.
- An instrument that is inadmissible as a will in Florida cannot effect a revocation of an otherwise valid prior will governing property subject to Florida probate.

## Conclusion

The court held that an unsigned Argentine notarial instrument based on an oral declaration was a prohibited nuncupative will under Florida law, rendering it inadmissible to probate in Florida and ineffective to revoke the decedent’s earlier New York will governing U.S. assets.


Malleiro v. Mori, 182 So. 3d 5 (Fla. Dist. Ct. App. 3d Dist. 2015)