Wills in the Time of Covid-19

WILLS IN THE TIME OF COVID-19: A PRIMER

Updated April 20, 2020

A family member recently contacted me, concerned about COVID-19 and that he had no “plan” in place for his children. This person is very bright, extremely competent, and very forward thinking, yet like so many people had no will or other estate planning documents. We discussed creating a will with a testamentary trust and guardianship provision to protect his children in case he and his wife died. I gave him a crash course on wills and trusts, and thought it might be helpful for others to write a very basic primer about last wills and testaments in the face of coronavirus. So, here goes.

It’s April 2020, and we’re in the midst of the corona virus pandemic. Some of you may be wondering if it’s too late to create a will, and whether you can do it yourself.

The short answer is, yes, you can create your own will. Ordinarily I would not advise creating your own will. Drafting wills can be complicated, and getting it wrong can lead to serious, undesired and unintended consequences. But these are extreme times. Making your own will should be an option of last resort. My goal is to provide some basic information that, if you decide to make your own will, will hopefully help you avoid some basic mistakes and pitfalls.

This article will discuss:

Basic will aspects.
Creating a testamentary trust and guardianship for children under 18.
And crucially, how to properly execute the will.

A few caveats:

This article is intended as a public service, for the general public. This article does not make me your lawyer or create an attorney-client privilege.
A little bit of knowledge can be a dangerous thing. This article does not begin to pretend that reading this will make you competent to make your own will. Proceed at your own risk.
Finally, I am licensed to practice law in Florida and only qualified to give advice about Florida law. Almost everything I discuss will be specific to Florida. If you are in another state, you must consult the laws for your state.

What is a will?

The “testator” is the person making the will. A will is a set of instruction on what to do with the testator’s property when he or she dies. A will might also include instructions on who should take care of the testator’s children. A will could also instruct what to do with the testator’s remains (e.g., cremation, burial).

Does one need a will?

If a testator dies without a will, then her property will be distributed “intestate,” according to the rules prescribed by the legislature. For example, according to Florida Statute § 732.103, if the testator dies without a will and is not married, then all her property will go to her descendants. But if she has no descendants, then her property goes to her father and mother. But if her parents are deceased, then her property goes to her brothers and sisters and the descendants of any deceased brothers and sisters. But if none of those people are alive, then her property goes to her grandparents. And so on. If the testator dislikes that list, then she would be inclined to create a will, with her own terms. (There are additional rules for when a person dies intestate with a surviving spouse. See for example Fla. Stat. § 732.102.)

Having a valid will allows the testator to control to whom her property goes. Having a will may also help her heirs avoid having to probate the will. If there’s no will, then a court may supervise distributions, paying creditors, and other estate matters. Probate is time consuming, and could be expensive. A valid will helps to avoid the courts.

Electronic wills

Starting July 1, 2020, Florida will allow for online wills. Click here for a Florida Bar Journal article on the topic. As I write this, online will execution is not yet available.

Options for creating a will

In a perfect world, one would have a qualified attorney draft his will. Wills are very technical, there may be tax implications, and getting it wrong could lead to unintended and undesired consequences. (There may also be preferred alternatives to a will, such as a revocable trust.) But, here we are in the brave new world of coronavirus. Hiring an attorney may be cost prohibitive for many, some may be rushing to finalize a will if the would-be-testator is on her death bed, and finding a pro bono attorney (i.e., who will do it for free) may not be feasible.

So what are other options? Some libraries have free online legal forms. Here in Miami-Dade County, the public library provide its patrons with free access to legal forms, generated by U.S. Legal Forms, Inc., at their GALE portal. A variety of wills are provided, so hopefully the would-be-testator can find the will that fits her situation. A few examples:

FL-WIL-0001, Last Will and Testament for a Single Person with Minor Children
FL-WIL-0003-A, Last Will and Testament for Divorced person not Remarried with Adult Children
FL-WIL-0005, Last Will and Testament for Divorced person not Remarried with Minor Children

And so on. (I have not reviewed all of the documents; the reader is advised to proceed at his or her own risk.)

Basic Will Provisions

Revocation

A will typically has a section revoking any prior wills or codicils the testator made. (A codicil is an amendment to a will, made with all testamentary formalities.)

Personal representative

A will usually designates a personal representative (aka executor/executrix). The personal representative handles the estate, pays creditors, disburses property to beneficiaries, etc. A will might specify a backup (successor, or contingent) representative, so that if the person appointed is unable or unwilling to act as personal representative, then a second person would be appointed instead. In Florida, a spouse can act as personal representative.

The general rule for qualification is that the personal representative must be “sui juris” (of age) and a Florida resident at the time of the decedent’s death. Fla. Stat. § 733.302.

However, pursuant to Fla. Stat. § 733.304, certain family members might qualify even if they reside outside Florida, if that person is:

(1) A legally adopted child or adoptive parent of the decedent;
(2) Related by lineal consanguinity to the decedent;
(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
(4) The spouse of a person otherwise qualified under this section.

Pursuant to Fla. Stat. § 733.303, a person is not qualified to act as a personal representative if the person:

(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.

A will typically enumerates, or lists, the powers of the personal representative. For example: on behalf of the estate a testator might specify that the personal representative is empowered to sell, acquire and transfer any property, pay creditors, wind up partnerships, etc.

Specific bequests and the residue

The testator can devise specific property to a specific person. “I leave my stamp collection to my cousin Ann Smith, if she survives me.” The testator can specify contingencies: “If Anne predeceases me, then I leave my stamp collection to my nephew Alan.”

A bequest could specify funds from a specific source. For example: “$16,000 to my brother, from the red suitcase full of cash under my bed.”

A testator could also simply give all her property to a number of people, broken down by percentages. For example: “All my property to my surviving spouse.” Or, “50% of my property to my brother, and 50% to my sister.”

Any property not specifically devised at the testator’s time of death is generally considered part of the residue. This might include, for example, after-acquired property, for example, a bicycle acquired after the will was executed. A will should contain a residuary clause to dispose of any such remaining property. For example, “The rest and remainder of my property to my sister Marquita.” Without a residuary clause, the will could end up in probate with the remaining property (i.e., residue) distributed according to intestate rules.

Distribution options

A phrase that one often sees in a will is “per stirpes.” Per stirpes is a distribution scheme that would specify how property flows to one’s children, and in turn to the grandchildren, should one of the testator’s children predecease the testator. See Wikipedia for an example of per stirpes distribution.

The default distribution scheme in Florida is per stirpes. Fla. Stat. § 732.611. A testator could choose an alternate distribution scheme, but must so specify.

Testamentary Trust

Suppose the testator has minor children. Let’s say elsewhere in the testator’s will he devised everything to his spouse, and then to his children in equal portions if his spouse predeceased him. In this case, if the spouse dies before the testator, the testator’s property goes to the children. But who manages the property for the children? One solution is to create a testamentary trust, through the will, whereby a trustee manages the trust property for the benefit of the trust beneficiaries (here, children). The downside is that the testamentary trust will be probated.

A trust requires four components: a settlor, a trustee, property, and at least one beneficiary. The settlor is the person granting the property, in this case the testator. A trustee manages the property in the trust for the benefit of a beneficiary.

A testamentary trust comes into being when the testator dies. Let’s suppose the testator is married. In her will, the testator might instruct her personal representative: if her spouse predeceases her and her children are under, say, age 18, the representative shall take any property bequeathed to the children and transfer it to a trustee. The will then instructs the trustee to hold the property for the benefit of the children until they reach a specified age, at which point the testator might have instructed the trust to terminate, and to have all remaining property then distributed to the children.

The testamentary trust provision usually specifies a standard of living for the trustee to follow: for example, to spend funds for the beneficiaries/children to provide them with the standard of living to which they are accustomed at the time of the testator’s death.

The will should name a trustee. And just as one can designate alternative personal representatives, the testator can list alternative (or, successor) trustees, in the event, for example, the named trustee is unable or unwilling to assume the role of trustee.

A testamentary trust may have an elaborate set of contingency rules. For example, what happens when one of the children ages out of the trust. What happens if one of the beneficiaries dies before termination of the trust, and has living issue (i.e., children of their own). And so on.

This primer is not intended to make the reader an expert, let alone competent, to create a testamentary trust from scratch. But I want any reader to understand that a testamentary trust is one mechanism for safeguarding a minor child’s inheritance, after the parents pass away. A look at the above-mentioned wills form for married people with children will give the reader a sense for some of the complexity here.

Guardianship

If the would-be-testator has minor children, he will almost certainly want to appoint through the will a guardian for those children in the event he dies and there’s no remaining parent. Upon the testator’s death, the guardian will then have authority to make legal, medical and other parenting type decisions for the minor children. If the testator has a mentally incapacitated child who is an adult, and is that individual’s legal guardian, then the testator might want to likewise appoint a successor guardian in the event of the testator’s death.

Will execution and formalities

One of the most critical aspects of creating a will is the execution, or signing, of the will, with all attendant formalities. A significant portion of just about any law school wills, trusts and estates course is spent discussing cases in which wills were not properly signed, executed, witnessed, etc., and how those wills, or portions thereof, were thus deemed invalid.

In this day of coronavirus, some may believe that courts will perhaps be lenient, and allow testamentary statements not formally executed to pass as valid. Without approval from the legislature, such leniency should not be expected from any court. Will execution laws are strict because the deceased cannot return from the grave to correct the record. And the legislature has created a clear alternative to wills: If formalities aren’t heeded, and the will is invalidated, property will be distributed via intestacy. As the Florida supreme court opined, “A testator must strictly comply with these statutory requirements in order to create a valid will.”[1]

Who may make a will?

Florida Statute § 732.501, answers that question: “Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.” “Sound mind” is a question of fact. Note that “Testamentary capacity is determined only by the testator’s mental capacity at the time he executed his will.”[2] The fact that a testator may have previously been declared incompetent and had a guardian appointed will not necessarily invalidate a will.[3]

Will execution

Florida Statute § 732.502 is the playbook for executing wills.

Every will must be in writing.

There are two options for the testator’s subscribing, or signing, the will. The testator can either sign the will herself, or direct another person to sign the will for her.

Either way, the will must be signed at the end. This means that any testamentary provision written below the testator’s signature would be invalid. For example, if the testator signs his will and then remembers he forgot to bequest his patio furniture to his neighbor, writing underneath his signature “p.s. My patio furniture to my neighbor” would most likely be invalid.

The testator’s name may be “subscribed at the end of the will by some other person” but must be done so “in the testator’s presence and by the testator’s direction.” Let’s suppose the testator is unable to write. The testator can direct another person to sign the will for her. However, the other person, as the statute plainly states, must sign in the testator’s presence.

The execution of the will also requires at least two attesting witnesses.

The testator can sign in the presence of the attesting witnesses. Or the testator can sign the will (or direct someone to sign for him/her) separately, and later acknowledge to the attesting witnesses (a) that he or she has previously signed the will, or (b) that another person has subscribed the testator’s name to it. The better practice would be to have everyone sign at the same time.

Regardless of when the testator’s signature is made, the attesting witnesses “must sign the will in the presence of the testator and in the presence of each other.” Not following this rule strictly is an easy way to invalidate the will. For example, imagine Friend A comes over, watches the Testator sign, then signs the will as a witness, and then leaves. Later, Friend B comes over and signs the will, after Testator acknowledges his signature to her. This execution would be invalid, as Friend A and Friend B failed to sign in each other’s presence.

While some may treat such formalities as mere suggestions, and cut corners, doing so is a bad idea. Were someone later to challenge the will, the witnesses could be called to testify in court as to how the will was executed. Lying to the court would constitute perjury, a third degree felony punishable by up to five years in prison.[4] And telling the truth would invalidate the will. To avoid these negative outcomes, one should simply follow the statute, as onerous as that may seem.

Military Testamentary Instrument

By statute, Florida also recognizes military wills: “Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.”[5] Note that the requirements are stricter than those under general Florida law, as the execution requires execution of the will in the presence of military legal assistance counsel acting as presiding attorney, and two disinterested witnesses. Florida mandates neither legal assistance counsel, nor that witnesses be disinterested.

Who may witness?

Compared to some other states, Florida has fairly liberal restrictions as to who can act as a witness. Pursuant to Fla. Stat. § 732.504:

(1) “Any person competent to be a witness may act as a witness to a will.”
(2) A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.

The Florida legislature did not enact an age minimum for an attesting witness. The witness must simply be competent. This suggests that a competent minor, who understands the nature of the proceedings, could act as a witness. One website I came across states that the witness could be as young as 14,[6] but I have not found any authority for that statement. Note however that minors generally cannot enter into contracts. On the other hand, a minor may be competent to testify at a trial as a witness. Also, compare Fla. Stat. § 732.504 (competent person) with Fla. Stat. § 765.302, which mandates that only a “competent adult” can make a living will. Regardless, best practice would be to have a competent adult serve as a witness.

Some states prohibit a beneficiary from acting as a witness. For example, in Kansas, a person who inherits under the will cannot act as a witness.[7] Florida, however, reversed the common law rule and has no such prohibition.[8] That said, the best practice is to avoid the use of an interested party as a witness.[9]

However, with the threat of coronavirus, finding disinterested individuals to witness the will signing might be challenging. A senior testator might not want to risk exposure to, say, neighbors willing to serve as witnesses. However, the Florida statute would allow family members—whom the testator might be living with and already be exposed to—to witness the will, even if those family members are named beneficiaries in the will.

Can a person who writes the will for the testator act as witness?

Apparently, yes. Caselaw supports the notion that the scrivener of a will may at the testator’s request perform the act of signing the testator’s name to a will and also be an attesting witness to the will.[10]

Can the personal representative serve as a witness?

I have found no authority saying otherwise.

Must the testator say specific words to execute the will?

According to Fla. Stat. § 732.502, “No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.”

“Presence”

The witnesses must sign in the testator’s “presence.” Unfortunately there’s not much case law in Florida as to what constitutes “presence.”[11] Note that merely being in the vicinity of the testator may be insufficient (e.g., merely being in the same building may not count). One court has suggested that “presence” requires that a person must “see” or “sense” the act for which presence is required.[12] Therefore, best practice would be for any witness or person subscribing on behalf of a testator to be able to see and sense the testator. Also, Black’s Law Dictionary (11th ed. 2019) defines presence as (1) “The quality, state, or condition of being in a particular time and place […] and (2) “Close physical proximity coupled with awareness.”[13] One would be prudent, therefore, to execute a will with close physical proximity of testator and witnesses.

What constitutes sufficient physical proximity however is unclear. How close is close enough? Note that the statute does not require the participants to be indoors. The federal Centers for Disease Control and Prevention (CDC) currently recommends: “Avoid close contact with people who are sick” and “Put distance between yourself and other people if COVID-19 is spreading in your community.”[14] I am reluctant to give advice here, other than to suggest that witnesses and testator would want to maximize distance amongst themselves to minimize exposure and follow any government guidelines, while simultaneously remaining physically close enough for the witnesses to see and sense the testator. One proceeds here at one’s own discretion.

Self-Proving Affidavit

Should a will need to be entered into probate, and proven valid, then the attesting witnesses may be called to court to testify as to its execution. Fla. Stat. § 733.201. If a witness is deceased or otherwise unavailable, then the personal representative may be called to testify instead. Id. To avoid needing such testimony, a will executed according to the probate code can be admitted with what’s called a self-proving affidavit. Id.

Fla. Stat. § 732.503 sets out the rules for creating a self-proving affidavit.

A will executed in conformity with statute § 732.502 (the execution of wills statute discussed above at length) “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 (e.g., notary) and evidenced by the officer’s certificate attached to or following the will.

Typically, the testator and witnesses sign the affidavit at the time of the execution of the will, for example, in the attorney’s office. The rule however permits the self-proving affidavit to be signed and notarized afterward, “at any subsequent date.” This is helpful, because in our time of coronavirus, a testator may be unable to procure a notary for the will signing, and may not want to wait until one is available. In a worst case scenario, where the testator dies before a self-proving affidavit can be generated, the witnesses (or personal representative) might have to come to court to prove the will.

The statute itself, § 732.503, contains language for the affidavit. (The affidavit must be in “substantially” the same form as the provided text.)

Starting July 1, 2020, Florida notaries will be permitted to notarize self-proving affidavits online. Fla. Stat. § 732.522. Until then, the notary must be (physically) present with the person whose signature is being notarized. Fla. Stat. § 117.107(9). I am not aware of any emergency court order that suspends this rule for self-proving affidavits.[15]

Note that while the testator to the officer/notary declares the will to be his or hers, the witnesses are sworn by the officer/notary and make their declaration under oath. For those uncomfortable with making an oath (for example, for religious reasons), Florida allows an affirmation instead. See Fla. Stat. § 1.01(5) (“The word ‘oath’ includes affirmations.”).

The notary cannot serve as a witness because a notary “is without authority to administer an oath to himself.” Florida Op.Atty.Gen., 074-66, March 1, 1974.

Additional Documents

Proper estate planning does not end with the creation of a will. Here are three additional documents that one should consider.

Living will

Fla. Stat. § 765.302 allows any competent adult to “make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state.”

A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. Fla. Stat. § 765.302.

Fla. Stat. §765.303 provides suggested (but not mandatory) language for a living will.

Durable Power Of Attorney

By creating a power of attorney (POA), the grantor gives his or her agent specific, enumerated powers to act on his or her behalf—for example, signing contracts, leasing property, accessing bank accounts, etc.—without express court approval. Fla. Stat. § 709.2201. Yes, this is considerable power to grant to another human, but could be welcomed if the grantor later became incapacitated, unable to act on his or her own behalf. Clearly, the grantor needs to grant a POA only to someone he trusts.

A Florida POA made after October 1, 2011 is exercisable when executed and cannot be conditional. Fla. Stat. § 709.2108. In other words, the document cannot be signed today but only become effective when, say, the grantor become incapacitated.

Very crucial: If the grantor wants the POA to remain “durable” during a grantor’s subsequent incapacity, the document must contains the words “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes”—or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity. Fla. Stat. § 709.2104. Without such language, the POA ceases to be effective when a person becomes incapacitated.

The grantor/principal may subsequently revoke a POA by expressing the revocation in a subsequently executed POA or other writing signed by the principal. Fla. Stat. § 709.2110.

A POA requires two witnesses and notarization: “A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in s. 695.03” (e.g., a judge, clerk, or deputy clerk of any court). Fla. Stat.§ 709.2105.

Designation of Health Care Surrogate

Florida also allows a person/principal to designate a surrogate to make health care decisions and receive health information on behalf of the principal. Fla. Stat. § 765.202.

The principal must sign in the presence of two subscribing adult witnesses, or, if unable to sign, may, in the presence of witnesses, direct that another person sign the principal’s name.

The designated surrogate cannot act as a witness, and at least one of the witnesses can be neither the principal’s spouse nor blood relative.

Fla. Stat. § 765.203 provides suggested, but not mandatory, language for the document.

Property passing outside the will

Finally, if the testator has a bank account, IRA, 401(k), stock portfolio or other such financial account in which she named a beneficiary through the account, then upon her death the funds typically pass outside probate. For example, if the testator had a Vanguard Roth IRA fund in which she filled out Vanguard paperwork designating, say, her daughter, as beneficiary, then that account will theoretically pass upon her death to the daughter, outside of her will. Likewise, jointly held accounts with rights of survivorship (JWROS) generally pass to the surviving joint owner of the account, outside of the will.

Problems can arise if the testator names Person A the beneficiary of an account through account paperwork, but lists Person B as beneficiary of the same account through the will. Such conflicts can lead to expensive legal battles. The testator should obviously be careful to avoid such conflicts.

Note that if a testator tries to disinherit a spouse, the spouse may still be able to claim a portion of some of the above-mentioned accounts. A spouse cannot be disinherited; a disinherited spouse may assert a right to part of the deceased’s estate. For example, if the testator’s spouse survives the testator and the will leaves nothing to the spouse, the spouse could elect to receive a portion of the estate regardless. “The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent […].” Fla. Stat. § 732.201. Taking this share is not automatic; the spouse must elect to do so. See Fla. Stat. § 732.2035 to see what property enters into the elective estate. The elective share calculation is complicated and outside the realm of this article. But the larger point here is that, pursuant to Fla. Stat. § 732.2035, the decedent’s ownership interest in accounts or securities registered as “Pay On Death,” “Transfer On Death,” “In Trust For,” or co-ownership with right of survivorship may be considered part of the elective estate—and a portion thereof clawed back by the surviving spouse.

The moral is that the testator should avoid making conflicting gifts (e.g., will beneficiary versus account beneficiary), and know that gifts through accounts and the like might be clawed back as part of the estate (if the disinherited spouse chooses to exercise her right to the elective share of the estate).

Conclusion

Sometimes estate planning does not involve a will, but might incorporate instead, for example, a revocable trust. Revocable trusts and other estate planning mechanisms, however, are beyond this article’s scope. A will may not always be the ideal estate planning document, but in the extreme world of cornavirus, where an individual may find herself sick and feel she does not have time or resources to properly estate plan, a self-generated will properly executed may be best option, and better than nothing.

Notes

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.

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