Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori, 182 So.3d 5 (Fla. 3d DCA 2015)

This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code.

The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and stamped the will.  The testator and the witnesses did not sign the will.  The beneficiaries of the Argentine will were completely different than those of the New York will.  

The Court considered whether the Argentine will could be admitted to probate under Florida law.  F.S. 732.502(1) requires that a will be signed by the testator and the witnesses.  But F.S. 732.502(2) relaxes the requirements for the wills of nonresidents, in that it recognizes as valid a foreign will of a nonresident if the nonresident's will is valid under the laws of the state or country where executed.  However, even if executed by a nonresident, Florida law does not recognize two types of wills: holographic wills and noncupative wills.  Unfortunately, the Probate Code fails to define "noncupative" wills.  Black's Law Dictionary defines a noncupative will as a "will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof."  The Court noted that the classic noncupative will is a deathbed declaration.  

The Court then acknowledge that the Probate Code recognizes a nonresidents' "notarial will" in F.S. 733.205 by providing that a copy may be admitted to probate if the original is required to be retained in the foreign country and if the original could have been admitted to probate in this state.  But again, the Probate Code fails to define "notarial" wills.  Generally, the Court noted, a notarial will is a will whose creation is supervised by a civil law notary who then permanently stores the will.  The generally accepted definition of a notarial will does seem to include the signature of the testator, notary and witnesses.  

Ultimately, the Court held that the Argentine will was a notarial will, but was a type of notarial will that is noncupative because it was not signed by the testator. Thus, the unsigned Argentine will could not be admitted to probate in Florida.  

The Court invited the legislature to revisit the Florida Probate Code to include definitions of "notarial," "noncupative," "holographic," and "nonresident."