RULE 5.230. COMMISSION TO PROVE WILL

(a) Petition. On petition the court may appoint a
commissioner to take the oath of any person qualified to prove the
will under Florida law. The petition must set forth the date of the
will and the place where it was executed, if known; the names of the
witnesses and address of the witness whose oath is to be taken; and
the name, title, and address of the proposed commissioner.

(b) Commission. The commission must be directed to a
person who is authorized to administer an oath by the laws of
Florida, the United States of America, or the state or country where
the witness may be found, and it shall empower the commissioner
to take the oath of the witness to prove the will and shall direct the
commissioner to certify the oath and file the executed commission,
copy of the will, oath of the witness, and certificate of
commissioner. An oath of the commissioner is not required.

(c) Mailing or Delivery. The petitioner or the petitioner’s
attorney must cause the commission, together with a copy of the
will, the oath, and the certificate of commissioner, to be mailed or
delivered to the commissioner.

(d) Filing. The executed commission, copy of the will, oath of
the witness, and certificate of commissioner must be filed.

Committee Notes

Rule History

1975 Revision: Substantially the same as prior rule 5.130(a)
and (b) and carries forward prior procedures as to a matter upon
which Florida Probate Code is silent.

1984 Revision: This rule has been completely changed to set
forth the procedure for the issuance and return of a commission.
The rule has been broadened to allow anyone authorized by Florida
Statutes or by the U.S. Code to be a commissioner as well as those
authorized by the state or country where the witness resides.

The rule now provides that the petitioner or his attorney shall
forward the commission to the commissioner. The rule also
contemplates that a Florida notary may be appointed as
commissioner to take the proof of a witness outside the State of
Florida. Committee notes revised and expanded.
1988 Revision: Editorial and substantive changes. Change in
(a) to provide that the commissioner may take the oath of not only
the attesting witness to the will but also the oath of any other
person qualified to prove the will; change in (c) to permit copies
other than photographic copies to be furnished to the
commissioner, and to permit delivery of documents in a manner
other than by mailing; change in (d) to require the filing of
documents with the court. Committee notes revised. Citation form
changes in rule and committee notes.

1992 Revision: Editorial change. Committee notes revised.
Citation form changes in committee notes.

2003 Revision: Committee notes revised.

2013 Revision: Subdivision (e) deleted because it duplicates
subdivision (d) in Rule 5.240. Committee notes revised. Editorial
changes to conform to the court’s guidelines for rules submissions
as set forth in AOSC06-14.

Statutory References

§ 92.50, Fla. Stat. Oaths, affidavits, and acknowledgments;
who may take or administer; requirements.

§ 733.101, Fla. Stat. Venue of probate proceedings.

§ 733.201, Fla. Stat. Proof of wills.

§ 22 U.S.C. § 4215 Notarial acts, oaths, affirmations,
affidavits, and depositions; fees.

Rule References

Fla. Prob. R. 5.050 Transfer of proceedings.

Fla. R. Civ. P. 1.060 Transfers of actions.