PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Proper Execution of a Will

A will is not valid unless it is executed with the formalities required by law. Sec. 732.502, F.S. reads in relevant part:

(1)(a) Testator’s signature. –

  1. The testator must sign the will at the end; or
  2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

(b) Witnesses. – The testator’s:

  1. Signing, or
  2. Acknowledgment:
  3. That he or she has previously signed the will, or
  4. That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.

(c) Witnesses’ signatures. – The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

A testator must strictly comply with these statutory requirements in order to create a valid will. See Allen v. Dalk, 826 So. 2d 245 (Fla. 2002), citing In re Bancker’s Estate, 232 So. 2d 431 (Fla. 4th DCA 1970). All Florida residents leaving property in this state must comply with the execution requirements even though the will or codicil is actually executed in a foreign jurisdiction. See §732.502(2), F.S.

The purpose of the statute is to assure the authenticity of the testator’s signature, to avoid fraud in its execution, and to provide reasonable assurance of the circumstances under which the signature was affixed to the document. See In re Estate of Olson, 181 So. 2d 642 (Fla. 1966);Manson v. Hayes, 539 So. 2d 27, 28 n.2 (Fla. 3d DCA 1989). Thus, in order to satisfy the requirements of the statute, it is essential for the witnesses to sign both in the testator’s presence and in the presence of each other. SeeHelfenbein v. Baval, 157 So. 3d 531 (Fla. 4th DCA 2015).

Florida law permits a testator to sign a will by making a mark (such as an “x”) not commonly regarded as a formal signature. See In re Estate of Williams, 182 So. 2d 10, 12 (Fla. 1965).

It is not essential that the will be signed by the testator on each page, only that it be signed “at the end.” The purpose of this requirement is to prevent the addition of subsequent provisions after the testator’s signature. If the testator signs the will in the wrong place, but signs it after the last provision and his signature is properly witnessed, the will is valid. For example, in Schiele’s Estate, 51 So. 2d 287 (Fla. 1951) the court held that a will signed at the end by the testator was valid even though it was signed on a line reserved for the attesting witness, and Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978) where the testator signed at the end of the codicil without attesting witnesses; however, immediately following his signature and on the same piece of paper, the testator signed a self-proof affidavit that was properly witnessed. The court held that the codicil was valid.

The order in which the signing occurs makes no difference. For example, in Bain v. Hill, 639 So. 2d 178 (Fla. 4th DCA 1994), the court found that the will was properly executed even though one of the attesting witnesses signed before the testator when the execution process was a continuing transaction.

In Bitetzakis V. Bitetzakis, 2019 Fla. App. LEXIS 1328; 2019 WL 405568 (Fla. 2nd DCA 2/1/19), the decedent undertook to execute his will at his home. The decedent, Ana, his wife, and two witnesses, Rivera and Alequin, their pastor, had gathered in the kitchen for the signing ceremony. Rivera testified that he was the first person to sign as a witness and that he did so at the decedent’s request. Alequin was the second to sign as a witness. Alequin stated that after he signed, the decedent began to sign the will but stopped at his wife’s behest. Ana testified that she was present on the occasion and recalled that the decedent asked Alequin and Rivera to sign the will. Ana also testified that she observed the decedent begin to sign the will (he signed his first name), but she directed him to stop because she believed that he needed to sign before a notary. She confirmed that only the decedent’s first name appeared on the signature line of the will, and she related that the decedent normally wrote his entire name when signing documents. Ana further testified that the next day she took the decedent to a notary. The decedent did not bring the will, but instead brought a self-proof affidavit which was signed by the decedent and the notary, but no witnesses (the decedent signed as his own witness). The probate court upheld the validity of the will and the appellate court reversed. The court reasoned:

In this case, the probate court erred because the evidence does not establish that the decedent signed at the end of the will or directed another to subscribe his name in his stead. See Dalk, 826 So. 2d at 247 (“[W]here a testator fails to sign his or her will, that document will not be admitted to probate.”). Under these very unique circumstances, it is clear that the decedent recorded something less than his full customary signature and therefore did not sign the will within the meaning of section 732.502. See Signature, Black’s Law Dictionary (10th ed. 2014) (defining a signature as a “person’s name or mark written by that person . . . esp., one’s handwritten name as one ordinarily writes it” and “the act of signing something; the handwriting of one’s name in one’s usual fashion”).

To be sure, Florida law permits a testator to sign a will by making a mark not commonly regarded as a formal signature. See In re Estate of Williams, 182 So. 2d 10, 12 (Fla. 1965) (“[A] mark made by the testator at the proper place on his will with the intent that it constitute his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement that he ‘sign’ his will.”). However, in this case we cannot construe the decedent’s alphabetic first name as constituting his mark because there is no evidence that the decedent had the concomitant intent that it serve in place of his signature. In other words, there is no evidence that the decedent signed his first name “with the intention that [a portion of his signature] evidence his assent to the document.” Id. at 13. To the contrary, that the decedent intentionally ceased signing the will and later signed the self-proof affidavit in an apparent attempt to ratify it dispels any notion that he believed or intended that his first name serve as his signature and assent to the will.

In Allen v. Dalk, 826 So. 2d 245 (Fla. 2002), the decedent met with her attorney and signed several documents, including four duplicate originals of the living will and designation of health care surrogate and three duplicate originals of the durable power of attorney; however, the decedent inadvertently failed to sign a copy of her will. The decedent’s niece argued that a constructive trust should have been imposed for the benefit of the beneficiaries of the will. The appellate court acknowledged that the decedent probably intended to sign the will, but found that, as the will was improperly executed, a constructive trust could not be imposed, as it would have had the effect of validating the invalid will. The supreme court found that the decedent failed to sign or to direct someone to sign her will. While it was probable that the decedent read the will and intended to sign her name, the court had no way of knowing why she did not do so, nor did the court know that the will properly reflected her testamentary intent. Further, the decedent’s typewritten name on the will did not constitute her signature. Thus, an order imposing a constructive trust would only serve to validate an invalid will.