IN RE THE ESTATE OF HUGH N. RICHMOND, DECEASED
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In a will contest appeal, the court held that a single attesting witness's testimony is sufficient to establish prima facie compliance with will execution requirements, and that the burden then shifts to contestants to prove grounds for revocation. The court affirmed the lower court's decision denying the petition to revoke probate.
A single attesting witness's testimony is sufficient to establish prima facie formal execution and attestation of a will, consistent with the statutory permission for probate admission upon the oath of one attesting witness. Once prima facie proof is established, the burden shifts to the contestant to prove facts constituting grounds for revocation.
[1] A prima facie case for the formal execution and attestation of a will can be established by the testimony of a single attesting witness.
[2] The burden of proof in a will contest initially rests on the proponent to demonstrate prima facie formal execution and attestation.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida law requires a will to be executed before two attesting witnesses but does not require proof of the execution and attestation to come from both of these witnesses.”
Establishes that the statutory requirement of two witnesses does not mandate that both must testify to execution
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Join FLexlaw to unlock all legal intelligenceHugh N. Richmond executed a will on December 13, 1971, before two attesting witnesses. A practicing attorney with 21 years of experience testified tha…
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GRIMES, Judge.
This is an appeal from an order denying a petition filed by one of the decedent’s children to revoke the probate of the decedent’s will.
At the hearing, a practicing attorney of twenty-one years experience testified that the will dated December 13, 1971, was exe cuted in compliance with the requirements of Section 731.07. At this point, the proponents of the will rested. The contestants’ contention that a prima facie case had not been established was rejected. The contestants then presented the testimony of the other two witnesses to the will. These persons admitted signing the will but said they didn’t know it was a will. They testified they never saw the decedent sign the paper which they witnessed and that no one said anything to them suggesting that it was a will.
The pertinent statute relating to the proof in will contests is Section 732.31, which reads:
“Burden of proof in contests. — In all proceedings contesting the validity of a purported will, whether before or after such will is admitted to probate, the burden of proof, in the first instance, shall be upon the proponent thereof to establish, prima facie, the formal execution and attestation thereof, whereupon the burden of proof shall shift to the contestant to establish the facts constituting the grounds upon which the probate of such purported will is opposed or revocation thereof is sought.”
The contestants’ main point is that since two witnesses are required for a will, the testimony of one witness respecting execution and attestation cannot suffice to carry the burden of proof imposed upon the proponents under this statute when the other witnesses are available to testify.
We believe the contestants have missed the mark. Florida law requires a will to be executed before two attesting witnesses but does not require proof of the execution and attestation to come from both of these witnesses. Since Section 732.24(1), F.S.A., permits a will to be admitted to probate upon the oath of one attesting witness, it would not be logical to require a higher burden of proof in order to make a prima facie showing of execution and attestation when the will is contested.
The testimony of the attorney was sufficient to establish, prima facie, the formal execution and attestation of the will. At that point, the burden shifted to the contestants to establish the facts constituting the grounds upon which the revocation was sought. There was a direct conflict in testimony. The judge was privileged to accept the testimony of the attorney over that of an eighty-four year old Swedish born neighbor of the decedent and his wife. A case is not to be decided by the number of witnesses each side calls but rather by the quality of the testimony given by the witnesses. Heitman v. Davis, 1937, 127 Fla. 1, 172 So. 705; Jacksonville Traction Co. v. Greene, 1933, 113 Fla. 316, 151 So. 523.
The order denying the petition for revocation of probate is affirmed.
HOBSON, A. C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Manson v. Fremont B. Hayes, 539 So. 2d 27 (Fla. 3d DCA 1989)…e testimony of the attesting witnesses was in direct and irreconcilable conflict.1 It was the province of the trial judge to hear the evidence, assess the credibility of the witnesses, and resolve the conflict in testimony. In re Estate of Richmond, 298 So. 2d 549, 550 (Fla. 2d DCA 1974). He did so. There is competent substantial evidence to support the conclusion reached. The order under review is affirmed.2 . One of the witnesses testified that the testator was present at the signing, signed in the presen…
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Blits v. Blits, 468 So. 2d 320 (Fla. 3d DCA 1985)…in compliance with Florida law. That evidence was sufficient to establish a prima facie case of formal execution, and the burden then shifted to appellants to present proof of facts constituting grounds for revocation. See In re Estate of Richmond, 298 So. 2d 549, 550 (Fla. 2d DCA 1974). Further, the will was self-proved pursuant to section 732.503, Florida Statutes (1983), which rendered it admissible to probate even without the testimony of the attesting witnesses. See Fenn and Koren, The 1974 Florida Prob…
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Bowe v. Giardina, 719 So. 2d 941 (Fla. 3d DCA 1998)…lly insufficient so as to justify the directed verdict Bowe sought. As observed in Heitman v. Davis, 127 Fla. 1, 172 So. 705 (Fla.1937), Jacksonville Traction Co. v. Greene, 113 Fla. 316, 151 So. 523 (Fla.1933) and again in In re Estate of Richmond, 298 So. 2d 549, 550 (Fla. 2d DCA 1974), a case is not to be decided by the number of witnesses each side calls but rather by the quality of the testimony given. Here, faced with conflicting testimony, the trial court was entirely correct to send the case to the ju…
Authorities Cited
- Heitman v. Davis, 127 Fla. 1 (Fla. 1937)
- Jacksonville Traction Co. v. Greene, 113 Fla. 316 (Fla. 1933)