PBCBA BAR BULLETINS pbcba_bulletin_March 2019 | Page 13

PROBATE C o r n e r
Proper Execution of a Will
DAVID M. GARTEN
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:
a. That he or she has previously signed the
will, or
b. 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. See Helfenbein 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 Ana further testified that the next day she
(Fla. 1965).
took the decedent to a notary. The decedent
did not bring the will, but instead brought a
It is not essential that the will be signed self-proof affidavit which was signed by the
by the testator on each page, only that it decedent and the notary, but no witnesses
be signed “at the end.” The purpose of this (the decedent signed as his own witness).
requirement is to prevent the addition of The probate court upheld the validity of the
subsequent provisions after the testator’s will and the appellate court reversed. The
signature. If the testator signs the will in court reasoned:
the wrong place, but signs it after the last
provision and his signature is properly In this case, the probate court erred because
witnessed, the will is valid. For example, in the evidence does not establish that the
Schiele’s Estate, 51 So. 2d 287 (Fla. 1951) the decedent signed at the end of the will or
court held that a will signed at the end by directed another to subscribe his name in
the testator was valid even though it was his stead. See Dalk, 826 So. 2d at 247 (“[W]
signed on a line reserved for the attesting here a testator fails to sign his or her will, that
witness, and Estate of Charry, 359 So. 2d document will not be admitted to probate.”).
544 (Fla. 4th DCA 1978) where the testator Under these very unique circumstances, it is
signed at the end of the codicil without clear that the decedent recorded something
attesting witnesses; however, immediately less than his full customary signature and
following his signature and on the same therefore did not sign the will within the
piece of paper, the testator signed a self- meaning of section 732.502. See Signature,
proof affidavit that was properly witnessed. Black’s Law Dictionary (10th ed. 2014)
The court held that the codicil was valid.
(defining a signature as a “person’s name or
mark written by that person . . . esp., one’s
The order in which the signing occurs handwritten name as one ordinarily writes
makes no difference. For example, in Bain it” and “the act of signing something; the
v. Hill, 639 So. 2d 178 (Fla. 4th DCA 1994), handwriting of one’s name in one’s usual
the court found that the will was properly fashion”).
executed even though one of the attesting
witnesses signed before the testator when To the contrary, that the decedent
the execution process was a continuing intentionally ceased signing the will and
transaction.
later signed the self-proof affidavit in an
apparent attempt to ratify it dispels any
In Bitetzakis V. Bitetzakis, 2019 Fla. App. notion that he believed or intended that his
LEXIS 1328; 2019 WL 405568 (Fla. 2nd DCA first name serve as his signature and assent
2/1/19), the decedent undertook to execute to the will.
his will at his home. The decedent, Ana,
his wife, and two witnesses, Rivera and To be sure, Florida law permits a testator to
Alequin, their pastor, had gathered in the sign a will by making a mark not commonly
kitchen for the signing ceremony. Rivera regarded as a formal signature. See In re
testified that he was the first person to Estate of Williams, 182 So. 2d 10, 12 (Fla.
sign as a witness and that he did so at the 1965) (“[A] mark made by the testator at the
decedent’s request. Alequin was the second proper place on his will with the intent that
to sign as a witness. Alequin stated that it constitute his signature and evidence
after he signed, the decedent began to sign his assent to the will is sufficient to satisfy
the will but stopped at his wife’s behest. the statutory requirement that he ‘sign’
Ana testified that she was present on the his will.”). However, in this case we cannot
occasion and recalled that the decedent construe the decedent’s alphabetic first
asked Alequin and Rivera to sign the will. name as constituting his mark because
Ana also testified that she observed the there is no evidence that the decedent had
decedent begin to sign the will (he signed the concomitant intent that it serve in place
his first name), but she directed him to of his signature. In other words, there is no
stop because she believed that he needed evidence that the decedent signed his first
to sign before a notary. She confirmed that name “with the intention that [a portion of
only the decedent’s first name appeared his signature] evidence his assent to the
on the signature line of the will, and she document.” Id. at 13. To the contrary, that the
related that the decedent normally wrote decedent intentionally ceased signing the
his entire name when signing documents. will and later signed the self-proof affidavit
in an apparent attempt to ratify it dispels
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