Facts
- Edwin R. Williamson, Sr. executed a will on March 30, 1985; it was admitted to probate after his death in 1988.
- The will bore the testator’s signature and two purported witness signatures (Niven and Bass), plus a self-proving affidavit reciting that the testator and both witnesses signed in each other’s presence; the drafting attorney, Welden, notarized the affidavit.
- Certain heirs petitioned to revoke probate, alleging the will was not executed in compliance with Florida’s will-execution statute because the required “presence” formalities were not met.
- Bass submitted an affidavit stating he did not see the testator sign, did not see the other witness sign, and signed when only Welden was present; Bass also asserted the notarization was to occur later.
- Welden submitted an affidavit stating the testator, both witnesses, and Welden were together for the signing; Welden asserted he saw the testator and both witnesses sign the will and attestation materials in each other’s presence.
- The probate court granted final summary judgment for the will’s proponent, ruling the will was validly executed.
Issues
- Whether an attesting witness’s affidavit disputing compliance with Fla. Stat. § 732.502 creates a genuine issue of material fact that precludes summary judgment upholding the will’s due execution, notwithstanding a self-proving affidavit and contrary affidavit evidence.
- Whether the drafting attorney’s signature as notary on an incorporated self-proving affidavit can serve as an attesting-witness signature sufficient to satisfy the two-witness requirement as a matter of law on this record.
Decision
- The Fifth District Court of Appeal reversed the final summary judgment and remanded.
- The court held Bass’s affidavit created a genuine issue of material fact on whether the will was executed in compliance with Fla. Stat. § 732.502.
- The existence of a self-proving affidavit and Welden’s affidavit did not eliminate the factual dispute created by Bass’s contradictory sworn account.
- Credibility and the actual circumstances of the signing had to be resolved in further proceedings, not on summary judgment.
Legal Principles
- A will is validly executed under Fla. Stat. § 732.502 only if the testator signs at the end in the presence of at least two witnesses, and the witnesses sign in the presence of the testator and each other.
- A self-proving affidavit provides strong evidence of due execution but is not conclusive when substantial, specific contrary evidence is presented.
- Summary judgment is improper when sworn evidence conflicts on a material fact central to will validity, such as whether statutory “presence” requirements were satisfied.
- When the record contains competing affidavits about the execution ceremony, the trier of fact must determine what occurred and assess witness credibility.
Conclusion
Because the challenger produced sworn testimony from an attesting witness that, if credited, would establish noncompliance with Florida’s execution formalities, the validity of the will could not be decided on summary judgment despite a self-proving affidavit; the case required fact-finding on remand.