In Florida, in order to be valid and enforceable, a Last Will and Testament must be signed by the person establishing the Will. The execution must be completed in the presence of two attesting witnesses. Sometimes the question arises as to who may serve as a witness to a Will. Fortunately, Florida has a statutory provision which addresses this question.
Section 732.504, Fla. Stat. entitled “Who may witness” provides as follows:
(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 term “interested witness” has been given broad application and to the surprise of many, it includes a beneficiary. For example, if John is establishing his Will and he names his adult son, John Jr., as beneficiary, the fact that John Jr. was one of the witnesses to signing of the Will does not negate the validity of the Will.
Despite the fact that a beneficiary can serve as a witness, most experienced estate planning attorneys advise against it. Having a beneficiary serve as a witness can pose problems later, especially if there is a dispute over the Will. One of the considerations that courts look at in the event someone alleges undue influence is whether the beneficiary was present at the Will signing. Obviously, if a beneficiary serves as a witness, he or she had to be present at the signing. For this reason, in our estate practice we only use a beneficiary as a witness to a Will if there is absolutely no other alternative (and there almost always is an alternative!!!).
