PBCBA BAR BULLETINS pbcba_bulletin_january 2019 | 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 II of III)
DAVID M. GARTEN
The term “to the best of my knowledge
and belief” is used in affidavits and court
documents to indicate that statements
being made are not knowingly false.
Assuming your client signs a document
under “knowledge and belief”, does he have
a duty to verify the truth or accuracy of his
statements?
In Applefield v. Commercial Standard Ins.
Co., 176 So. 2d 366 (Fla. 2nd DCA 1965), the
court held: “It is the rule of this jurisdiction
that whatever is sufficient to put a person
on inquiry amounts in point of law to notice,
provided there is a duty to make the inquiry
and such inquiry could lead to a knowledge
of facts which, under the circumstances
of the particular case, calls for application
of the rule in order to do equity….Means of
knowledge, with the duty of using them,
are in equity equivalent to knowledge
itself….Where there is a duty of finding
out and knowing, ignorance resulting
from a negligent failure to perform the
duty has the same effect in law as actual
knowledge…. “A person has no right to shut
his eyes or ears to information, and then
say that he has no notice. The law will not
permit him to remain wilfully ignorant of
a thing readily ascertainable by whatever
party puts him on inquiry, when the means
of knowledge is at hand. If he has either
actual or constructive information and
notice sufficient to put him on inquiry, he
is bound, for his own protection, to make
that inquiry which such information or
notice appears to direct should be made.
If he disregards that information or notice
which is sufficient to put him on inquiry
and fails to inquire and to learn that which
he might reasonably be expected to learn
upon making such inquiry, then he must
suffer the consequence of his neglect.”…
[citations omitted]; followed Sutton Enters.
Ltd. v. Santa Clara Constr. Co., 767 So. 2d 547
(Fla. 3rd DCA 2000); See also In re Estate of
Donner, 364 So. 2d 742 (Fla. 3rd DCA 1978).
Insurance Applications:
Under §627.409, F.S., an insurer can void a
policy for misstatements or omissions on
an application without regard to whether
they are intentional or accidental. However,
an insurer who includes the modifier “to
the best of his knowledge and belief” in an
insurance application has agreed to a lesser
knowledge standard. See Green v. Life &
Health of America, 704 So. 2d 1386 (Fla.
1998) (an application based on “to the best
of his knowledge and belief” is not a basis
to void an insurance policy so long as there
were no knowing misstatements on the
application); Casamassina v. United States
Life Ins. Co., 958 So. 2d 1093 (Fla. 4th DCA
2007) (an omission or misrepresentation
in an insurance application, when the
application is completed to the best of the
applicant’s knowledge and belief, is not
a basis for rescission of a policy); Accord
Ocean’s 11 Bar & Grill, Inc. v. Indemnity
Insurance Corp. of DC, 522 F. App’x 696 (11th
Cir. 2013). See also Sterling Insurance Co. v.
Dansey, 81 S.E.2d 446 (Va. 1954), where the
insured sued an insurance company for
denial of disability benefits. The Supreme
Court of Appeals of Virginia determined
that the “best knowledge” language on the
application excused any prevailing duty
(statutory or otherwise) to investigate
the accuracy of the warranty and that an
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incorrect statement, innocently made, will
not void the policy.
Foreclosures:
Fla. R. Civ. P. 1.115 contains a verification
requirement for residential mortgage
foreclosures. The complaint must include
an oath, affirmation, or the following
statement: “Under penalties of perjury, I
declare that I have read the foregoing, and
the facts alleged therein are true and correct
to the best of my knowledge and belief.” One
of the primary purposes of this amendment
was to “provide incentive for the plaintiff
to appropriately investigate and verify its
ownership of the note or right to enforce the
note and insure that the allegations in the
complaint are accurate”. [Emphasis added]
See In re Amendments to the Fla. Rules of
Civil Procedure, 44 So.3d 555 (Fla. 2010).
Save the
Date
Annual Estate & Probate Seminar
Tuesday, March 26, 2019
The Marriott Hotel
West Palm Beach
Seminar Details to Follow