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Florida Will Execution: Strict Compliance with Statute Required

Written by on Mar 26, 2019| Posted in: Estate Litigation

Bitetzakis v. Bitetzakis, — So.3d —-, 2019 WL 405568, 44 Fla. L. Weekly D343.

George Bitetzakis died in January 2017.  His grandson was appointed personal representative and petitioned to admit George’s September 2013 Last Will & Testament to probate.  George’s daughter, Alice, objected to the Will alleging it had not been executed in compliance with the statutory formalities set forth in Florida Statute §732.502.  Specifically, Alice alleged that George had not signed the Will within the meaning of the statute.

The trial court conducted an evidentiary hearing, during which the following was established through testimony:

George, his wife, his friend and his pastor met each week in George’s kitchen for breakfast.  (Sounds like the beginning of a joke, but the punchline in this case is nothing to laugh at.)  On September 26, 2013, George attempted to execute his Last Will & Testament, asking his friend and pastor to be witnesses.  The friend and pastor signed first and then George started to sign.  He got as far as his first name before his wife stopped him because she believed – mistakenly – that a notary was required.  The following day, George and his wife went to a notary, but they did not bring the Will.  Instead, they brought a self-proof affidavit, which by any accounts was not properly executed.  Neither of the witnesses had signed the self-proof affidavit, so it was signed only by George and by the notary and it misidentified who signed as witnesses to George’s Will.

A self-proof affidavit is not necessary for the proper execution of a Will in Florida.  All evidence, which is what a Will is (evidence of a person’s testamentary intent), must satisfy two requirements: 1) authenticity (the document is what it purports to be) and 2) admissibility.  A self-proof affidavit is a way of assuring the first prong of the evidence test is met.  The self-proof affidavit is irrelevant to and not dispositive of whether a Will was executed properly under Florida law.  So, the trial court was left to decide whether the Will, bearing only George’s first name, was properly signed. 

The trial court believed it had heard sufficient evidence that George and the two witnesses signed the Will in conformity with Florida law and the fact that only George’s first name was signed on the Will did not mean George had not signed the Will.  The trial court admitted the Will to probate and Alice appealed.  The appellate court disagreed with the trial court and reversed, rendering George’s Will invalid based on improper execution.

The Second District held

[t]he primary consideration in construing a will is the intent of the testator.” Allen v. Dalk, 826 So.2d 245, 247 (Fla. 2002) (citing Elliott v. Krause, 531 So.2d 74, 75) (Fla. 1987).  However, “when testamentary intent is contained in a will, it can only be effectuated if the will has been validly executed” in strict compliance with section 732.502, Florida Statutes.  Id. (emphasis supplied).  Section 732.502(1)(a) dictates that in order to properly execute a will, the testator “must sign the will at the end” or else 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.

Id.  (emphasis supplied)

In this case, it appears there was uncontroverted testimony that George intended to sign the will and that he did sign it – at least partially before his wife stopped him – in the presence of two witnesses.  Thus, the sole question was simply whether signing “George” instead of “George Bitetzakis” at the end of his Will was sufficient to satisfy the requirements of Florida law.  The Second District said it was not.  Instead, it held that “[u]nder 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.”  Id

Based upon an apparent dearth of case law on this specific issue, the appellate court resorted to the definition of “signature” found in Black’s Law Dictionary, which defines it 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; then handwriting of one’s name in one’s usual fashion.”  Id.  There was no evidence adduced at trial that George customarily signed his name by writing just his first name so the court found the signature insufficient to satisfy the requirement that a will be “signed” at the end by the testator.  Moreover, the court found “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.” 

This case raises the troubling question what constitutes a “signature” to a Will.  If the definition by the Second DCA is to be literally followed, then any variation of “the handwriting of one’s name in one’s usual fashion” (i.e., a signature) may lead to the conclusion that unless there is evidence that the decedent has the intent that the variation of his signature serves in place of his usual signature then he “has recorded something less than his full customary signature and therefore did not sign the will within the meaning” of the section of the Florida law defining how a person must sign his Will.   In short, under Bitetzakis, could any deviation from someone’s usual signature should cause a Will to be invalid?

Ask yourself whether these are valid signatures:

Customary signature:        

John C. Doe

Disputed Will signature:     

John Doe (middle initial missing)

Customary signature:

Mary C. Doe

Dispute Will signature:                

Regardless of whether one agrees with the holding, the Second District opinion in Bitetzakis offers a stark reminder that estate planning – both the drafting and the execution – should be done by lawyers.  The legal fee George would have paid to a lawyer to prepare a simple will would have been far less than the legal fees his family members have paid to lawyers to litigate – at trial and at the appellate level – whether George’s do-it-yourself will was validly executed.

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