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Can a Beneficiary act as a Witness during a pandemic?

Social Distancing and Signing Documents: Can a Beneficiary Act as a Witness?

During COVID-19, we have had to adapt the way we sign estate planning documents while maintaining safe social distancing. Although businesses are slowly reopening and things appear to be getting back to a sense of normal, it is still important to be cautious and keep our exposures to a minimum. One of the strategies Chepenik Trushin LLP has adjusted is to make the estate planning process entirely remote, with phone and video conferences, email communications, and sending estate planning documents through regular or electronic mail with detailed instructions for clients to sign on their own. For some clients, this has worked well, but for others, it has been a challenge to find two witnesses and a notary, which are required for many estate planning documents. A frequent question that has arisen is whether a relative or a beneficiary may serve as the witness to a will or other estate planning documents, such as a trust.

For a number of years, Florida law disfavored beneficiaries under a will from also being witnesses to the will. Under current Florida law, a will or codicil is not invalid simply because the will or codicil is signed by an interested witness. Fla. Stat. § 732.504(2). Based on the Florida statute, a beneficiary can serve as a witness to a will.

However, just because something is permissible does not mean it is advisable in every situation. While Florida allows a beneficiary to also be a witness to a will, this can be used to support a claim of undue influence if the will is contested. Under Flat. Stat. § 732.5165, “[a] will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. According to the seminal Florida case of In re: Carpenter’s Estate, 253 So.2d 697, 702 (Fla. 1971), one of the factors used to determine if undue influence exists is the presence of the beneficiary at the execution of the will. If there is a successful claim of undue influence, it could lead to the entire will or portions of it being invalidated.

So the answer is yes, a beneficiary may serve as a witness to a will, but whether it is advisable should be determined on a case by case basis. Those interested in learning more about will formation and or will contests, including the implications of choosing beneficiaries and witnesses, should not hesitate to contact the experienced attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist you with your estate planning, guardianship and probate litigation needs. Contact Bart Chepenik, 305-613-3548 for accessibility daily, seven days a week or Brad Trushin at 305-981-8889. We are here to assist you and make estate planning easy.

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