Can (and Should) a Beneficiary be Witness to a Will?

At Doane & Doane, we often get the question: “Can a beneficiary be witness to a will?” The short answer to that question in Florida is “yes.” Florida law provides that a beneficiary can be witness to a will. What we impress upon our clients, however, is that the inquiry should not stop there.

The fact that Florida law says that you can have a beneficiary be witness to a will does not necessarily mean that you should have a beneficiary be witness to a will.  

In that spirit, this article will first discuss the Florida statute that allows beneficiaries to be witness to a will, and then it will cover the reasons why it might not be a good idea for a beneficiary to be a witness even though it is legal. Most specifically, we will cover the concept of “undue influence,” and how that might impact how a will that is witnessed by a beneficiary will be handled in the courts.      

If, after reading this article, you would like to learn more about the probate of a loved one’s will, then we welcome you to contact us at Doane & Doane, PA. Call today at 561-656-0200 or fill out our online contact form. 

During these days of the pandemic, it can be particularly difficult to assemble the people you may need to properly execute a will in Florida. That is one reason why now, more than ever, it makes sense to find out whether you can have a beneficiary witness your last will and testament. Frankly, if your beneficiary, or beneficiaries, are in your safety “bubble” during the pandemic, it is simply more efficient to have them be witnesses.  

Specifically, under Florida Probate Code, Sec. 732.504, which is the law that explains “who may witness” a last will and testament in the State of Florida, the law states that:

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.

To paraphrase the above, using a beneficiary (who would be considered an “interested” party) to witness a will does not serve to invalidate that will.  

So, now that you can be comfortable in the knowledge that a beneficiary can witness the execution of a will.  The next question for you should be:  “ Should a beneficiary witness a will?”

The short answer to that question is, generally, “no.” Even though it is legal for a beneficiary to be a witness, that does not mean it is advisable for a beneficiary to be one.  

After a person passes away, his or her last will and testament can be challenged in probate court. Such challenges come typically by friends or family members who believe that they should have received an inheritance but did not.  

One such challenge to a last will and testament is a charge of “undue influence.” Under Florida Probate Code, Sec. 732.5165, “A will is void if the execution is procured by fraud, duress, mistake, or undue influence.”  

Specifically, “undue influence” in Florida is defined as “over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.”  Heasley v. Evans (Fla. 2d DCA 1958).

In order to prove that the person making the will was under “undue influence” when he or she made the will, Florida law views the presence of the beneficiary at the execution of the will as one factor of proof. 

Simply stated, having a beneficiary witness a will could result in a claim of undue influence. At that point, the beneficiary who witnessed the will would need to respond to the undue influence claim with proof that there was no undue influence.  

Accordingly, regarding the question: “Can a beneficiary be witness to a will?” – having a beneficiary witness a will, though legal, could lead to a litigation battle. Though there may be clear evidence that no undue influence occurred, litigation is always unpredictable, and it could be costly for the beneficiary to prove the absence of undue influence.  Therefore, it might be better, in the long run, to avoid having a beneficiary witness a will in the first place.  

Founded in 2003 by husband and wife legal team, Randell C. Doane and Rebecca G. Doane , Doane & Doane provides legal and financial services to families, individuals, and businesses throughout Southeast Florida. 

Estate planning is about much more than just giving away property. It is an act of love and kindness, with the ultimate goal of providing for the future financial security of your loved one. At Doane & Doane, our Wills and Trusts Attorneys in West Palm Beach help people plan for retirement, make provisions for loved ones, figure out future child support, and minimize tax liability. Experienced wills and trusts attorneys know which tools to use to get the best results for their clients. Our lawyers can help you determine which tools are best suited to your specific circumstances.

 When it comes to  probate matters  , such as the formal administration of an estate, Florida fiduciaries seek the assistance of the attorneys at Doane & Doane, P.A. to administer and manage their trusts and estates. Notably, the founding partners of Doane & Doane are board-certified  West Palm Beach Probate Attorneys  . With the additional advantage of certified public accountancy in their backgrounds, they present a unique combination of skills and experience which enables them to effectively settle, administer, and manage clients’ trusts and estates.

Since the day we opened our doors, we have worked hard to earn a reputation as one of the region’s most prominent tax and estate planning law firms in Palm Beach County, Florida. Our dynamic team includes the firm’s founding partners, experienced associate attorneys, and an outstanding team of paralegals, legal assistants, and support

Call us at Doane & Doane, P.A. to help you if you are faced with a probate matter, or if you would like estate planning services in Florida. You can reach us at 561-656-0200. Call us today.