Case of the Day: Malleiro v. Mori

The case of the day is Malleiro v. Mori (Fla. Dist. Ct. App. 2015). Eleno Isleno was an Argentine national who died in Florida at the age of 79. She held property in both Argentina and the United States at the time of her death. About five years before her death, she made a will in New York that everyone agreed satisfied the necessary formalities for a will under Florida law. The devisees under the New York will were her nieces, other relatives, and friends. A few months later, she made a will in Argentina. As you would expect, the formalities of making a will are quite different in a common law jurisdiction than they are in a civil law jurisdiction. In New York, she signed the will in the presence of attesting witnesses. In Argentina, Iselno orally expressed her testamentary wishes to a notary, in the presence of witnesses, who wrote them in a document and read them to her. She then orally approved the document in the presence of witnesses, and the notary signed and stamped the document. Iselno, however, did not sign. The Argentine will, which was admitted to probate in Argentina, purported to revoke all prior wills. The beneficiaries were Iselno’s nephew and other relatives and friends. None of the devisees under the Argentine will were devisees under the New York will, and vice versa.

The devisees under the New York will and the devisees under the Argentine will filed competing petitions in the Florida probate court. The court admitted the Argentine will to probate, and the New York devisees appealed.

Under Florida law, ordinarily a will must be signed by the testator in the presence of at least two witnesses, and the witnesses must also sign the will in the presence of the testator and each other. However, in the case of a nonresident (Iselno’s residence or domicile at the time she made either will is not really made clear), a will will be recognized as valid if it is valid under the law of the state or country where it was executed. But there is an exception to the exception: holographic and nuncupative wills executed in another jurisdiction are not treated as valid even if valid under the law of the place where executed.

Nuncupative wills. This takes me right back to the bar exam. I recall that in Massachusetts (at least circa 2000), a nuncupative will is not valid unless made by a dying soldier on a battlefield. But what is a nuncupative will, anyway? It is simply an oral will. A holographic will, by the way, is one that is not signed but that is in the testator’s handwriting; but holographic wills aren’t important in the case.

Florida law also makes provision for foreign “notarial wills,” which remain in the possession of the foreign notary. Such wills can be admitted to probate via an authenticated copy as long as the original would be entitled to be admitted to probate if the original were presented in court.

On appeal, the court reversed, holding that the Argentine will was a nuncupative will because it was unsigned (by the testatrix). If Iselno, along with the notary, had signed the will, as apparently is the practice in many cases of notarial wills, then the result would have been different.

You could imagine two attacks on this holding. First, is the will really nuncupative? It was written by the notary in Iselno’s presence and at her direction and signed by the notary with his approval. The only point at issue is that the notary signed in his own name, as notary, rather than in Iselno’s name. This seems like a pretty good argument to me. Second, you could argue that even nuncupative wills should be admitted to probate. But that seems a weaker argument, since the point of the requirement of a writing is to avoid disputes and aid certainty. True oral wills (imagine a dying person gathering the family around the deathbed and explaining her wishes to them orally) hardly meet that standard.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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