       Third District Court of Appeal
                               State of Florida

                         Opinion filed December 4, 2018.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D17-1049
                          Lower Tribunal No. 13-3222
                             ________________


                               Catherine Rizk,
                                    Appellant,

                                        vs.

                                 Joseph Rizk,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Celeste H. Muir,
Judge.

       Kopelowitz Ostrow P.A., and Kristen Lake Cardoso and Jan Douglas Atlas
(Fort Lauderdale), for appellant.

      Ader & Hitt, P.A., and Robert A. Ader and Elizabeth B. Hitt, for appellee.


Before SUAREZ, SCALES, and LUCK, JJ.

      PER CURIAM.
      Appellant Catherine Rizk appeals a summary judgment entered by the

probate court in favor of Appellee Joseph Rizk. The challenged order determined

that, by operation of law, decedent George Rizk’s February 1, 2013 will revoked a

prior will dated February 12, 1986.

      The decedent, the parties’ brother, was a native of Haiti. He died in April of

2013. Three and a half months before his death, the decedent prepared a will in

accordance with Haitian law, which authorizes a testator to dictate the will to a

Haitian notary who must reduce it to writing and read it back to the testator. The

will is then executed by the testator, the notary and four witnesses. The notary then

registers the will with the Haitian Tax Office and maintains the original in his or

her office.

      Appellant is the personal representative named in the decedent’s 1986 will,

and is a beneficiary of both the 1986 will and the 2013 will. In opposition to

Appellee’s cross motion for summary judgment,1 Appellant maintained that there

exist issues of material fact as to the validity of the 2013 will. Specifically,

Appellant argued that decedent did not execute the will on February 1, 2013,
1 Appellant initially filed a motion for summary judgment, which she withdrew at
the summary judgment hearing on January 30, 2017. One argument abandoned by
Appellant was that the 2013 will was a foreign nuncupative will – a will dictated
by a testator, typically on the deathbed – which is not valid in Florida, per section
732.502(2) of the Florida Statutes. By definition, a nuncupative will is unsigned by
the testator, which distinguishes a nuncupative will from the signed 2013 notarial
will at issue in this case. See Malleiro v. Mori, 182 So. 3d 5, 8-9 (Fla. 3d DCA
2015).


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because he was not in Haiti on that day; and further, that three of the four

witnesses did not sign the 2013 will on that date as well.

      In support of his motion for summary judgment, Appellee, inter alia,

provided affidavits by the notary and a Haitian attorney attesting to the 2013 will’s

validity under Haitian law. In the Haitian attorney’s affidavit, she states that, to her

knowledge, no court action has been filed in Haiti to contest the 2013 will’s

validity, and therefore, it remains valid under Haitian law. It appears from the

record that not only did Appellant not challenge the 2013 will’s validity in Haiti,

but that she already is receiving the benefits of the 2013 will as one of its

beneficiaries.

      Section 732.502(2) provides, in pertinent part: “Any will, other than a

holographic or nuncupative will, executed by a nonresident of Florida . . . is valid

as a will in this state if valid under the laws of the state or country where the will

was executed.” § 732.502(2), Fla. Stat. (2013). Appellee provided sufficient and

undisputed evidence at summary judgment that the 2013 will is valid in Haiti.

      Affirmed.

    ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED
WITHIN FIVE DAYS THEREAFTER.




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