PBCBA BAR BULLETINS pbcba_bulletin_december 2018 | Page 14

PROBATE C o r n e r
Verification Based On “To The Best Of My Knowledge And
Belief” May Be No Verification At All (Part I of III)
DAVID M. GARTEN
in which case the words “to the best of
my knowledge and belief” may be added.
The written declaration shall be printed or
typed at the end of or immediately below
the document being verified and above
the signature of the person making the
declaration.
(3) A person who knowingly makes a false
declaration under subsection (2) is guilty
of the crime of perjury by false written
declaration, a felony of the third degree,
The term “to the best of my knowledge punishable as provided in s. 775.082, s.
and belief” is used in affidavits and court 775.083, or s. 775.084….[Emphasis added]
documents to indicate that statements
being made are not knowingly false. In addition, Fla. Prob. R. 5.020(e) reads:
Assuming your client signs a document “Verification. --When verification of a
under “knowledge and belief”, does he have document is required, the document filed
a duty to verify the truth or accuracy of his shall include an oath, affirmation, or the
statements? Is your knowledge and belief following statement: “Under penalties
of the facts and law imputed to your client? of perjury, I declare that I have read the
Can a fiduciary avoid liability by signing foregoing, and the facts alleged are true,
to the best of my knowledge and belief.”
under “knowledge and belief”?
[Emphasis added]
“Knowledge” and “belief” and are not
KNOWLEDGE
IS
NOT
synonymous. Knowledge is a “justified PERSONAL
true belief” (Plato) – i.e., you believe it and SYNONYMOUS WITH “MY KNOWLEDGE
there is sufficient evidence or justification AND BELIEF”.
to support it. A belief can be true or
false, knowledge is neither, but belief is “Personal knowledge” is defined by
a necessary condition for knowledge. Black’s Law Dictionary (10th ed. 2014) as
“[k]nowledge gained through firsthand
Bencivegna, 1999.
observation or experience, as distinguished
from a belief based on what someone else
Sec. 92.525, F.S. reads in relevant part:
has said.”
92.525 Verification of documents; perjury by
If a verification of a complaint is based on
false written declaration, penalty.—
(1) If authorized or required by law, by knowledge and belief and fails to show
rule of an administrative agency, or by that the affiant had personal knowledge
rule or order of court that a document be of the matters stated in the complaint, the
verified by a person, the verification may be trial court cannot consider the verified
complaint as a basis for the entry of
accomplished in the following manner:
summary judgment. See Houk v. PennyMac
* * * *
(c) By the signing of the written declaration Corp., 210 So. 3d 726 (Fla. 2nd DCA 2017),
citing Ballinger v. Bay Gulf Credit Union,
prescribed in subsection (2).
(2) A written declaration means the 51 So. 3d 528 (Fla. 2d DCA 2010); Colon v.
following statement: “Under penalties JP Morgan Chase Bank, N.A., 162 So. 3d 195
of perjury, I declare that I have read (Fla. 5th DCA 2015); Lindgren v. Deutsche
the foregoing [document] and that the Bank Nat’l Trust Co., 115 So. 3d 1076 (Fla. 4th
facts stated in it are true,” followed by DCA 2013) (finding a verification based on
the signature of the person making the “information and belief” to be insufficient
declaration, except when a verification on for purposes of summary judgment), accord
information or belief is permitted by law, Morales v. ICI Paints (Puerto Rico), Inc., 383
PBCBA BAR BULLETIN
14
F. Supp. 2d 304 (D.P.R. 2005) (the phrase “to
the best of his knowledge” is not sufficient
to represent personal knowledge as required
by Fed. R. Civ. Proc. 56(e).)
A number of cases have held that the phrase
“to the best of my knowledge” when used in
affidavits suggests a level of uncertainty. See
Pelayo v. J.J. Lee Mgmt Co., Inc., 94 Cal. Rptr.
3d 502 (Ct. App. 2009); Katelaris v. County of
Orange, 112 Cal. Rptr. 2d 556 (Ct. App. 2001).
The Supreme Court of Alabama stated in
Board of Water and Sewer Commissioners
v. Spriggs, 146 So. 2d 872 (Ala. 1962), that
when an affiant uses the phrase “true to
the best of his knowledge, information and
belief,” the statement “means nothing ‘more
than the affiant believes the allegations of
the bill to be true, though he has neither
knowledge nor information of their truth,’
and ‘an affidavit of belief in their truth
simply amounts to nothing.’”
The words “within my knowledge,”…imply
that the affiant has sufficient knowledge
of the facts to verify his statement as to
the truth and justness of the account. On
the other hand, the words “to the best of
my knowledge” do not necessarily connote
a knowledge of the facts by the affiant
sufficient to support the verity of such a
statement. As appellant’s counter-affidavit
is based upon the “best of his knowledge”
only, it is equivocal and inadequate.
Gayne v. Dual-Air, Inc., 600 S.W.2d 373 (Tex.
Civ. App. 1980).
Save the Date
Annual Estate & Probate Seminar
Tuesday, March 26, 2019
The Marriott Hotel
West Palm Beach
Seminar Details to Follow