NOTES for WILLS IN THE TIME OF COVID-19: A PRIMER

Updated April 20, 2020

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1    Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002) (emphasis added)
2    Jervis v. Tucker, 82 So. 3d 126, 128 (Fla. 4th DCA 2012) (emphasis added)
3    See Chapman v. Campbell, 119 So. 2d 61 (Fla. 2d DCA 1960). A will executed by a person whose sanity is questionable could be valid, notwithstanding the insanity, if the testator executed the will during a lucid moment, or after sanity was restored. 
4    Fla. Stat. § 837.02
5    Fla. Stat. § 732.502(3)
6    https://info.legalzoom.com/article/rules-wills-florida
7    See, for example, Kansas statute 59-604.
8    The best practice is to avoid the use of interested witnesses altogether. § 8:10.Interested person as witness, 12 Fla. Prac., Estate Planning § 8:10 (2019-2020 ed.) 
9    Id.
10    In re Lomineck’s Estate, 155 So. 2d 561, 565 (Fla. 1st DCA 1963)
11    § 8:7.Definition of “presence”, 12 Fla. Prac., Estate Planning § 8:7 (2019-2020 ed.)
12    Price v. Abate, 9 So. 3d 37, 39 (Fla. 5th DCA 2009)
13    Under the context of “Wills & estates” Black’s Law Dictionary defines “presence” as the “Legal imputation of a witness’s having been in the room when a will was signed, based on the fact that the testator and the witness were able to see each other at the time of the signing. • This principle was commonly employed until the 20th century, when the presence-of-the-testator rule became dominant.”
14    https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (last accessed April 20, 2020)
15    In a COVID-19-related administrative order (No. AOSC20-16), The Florida Supreme Court has created emergency procedures for notaries and other qualified persons to administer oaths via audio-video communication equipment. “All rules of procedure, court orders, and opinions applicable to remote testimony, depositions, and other legal testimony, including the attestation of family law forms, that can be read to limit or prohibit the use of audio-video communications equipment to administer oaths remotely or to witness the attestation of family law forms, are hereby suspended […].” The focus is on testimony and attestation of family law forms. The Florida courts system provides family law forms to the public; wills and testamentary-related documents are not on that list. https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms. I may be wrong, but it seems to me that the Supreme court has not included self-proving affidavits in its emergency order. That said, one could still go ahead and request a notary to remotely notarize a self-proving affidavit, but with the understanding that the affidavit may ultimately be unenforceable.