Bitezakis v. Bitezakis
Bitezakis v. Bitezakis, --- So.3d --- (Fla. 2d DCA 2019)
While it seems easy enough to execute a will, this case reminds us that a client's attempt to do so at home without the guidance of a lawyer may have serious unintended consequences if the will is not executed in strict compliance with the signature requirements of F.S. 732.502.
Here, the decedent and two friends were in his home when first, two witnesses signed a purported will of the decedent, and subsequently, the decedent began to sign the will but stopped after signing just his first name after his wife instructed him to stop because a notary was not present. The next day, she took the decedent to a notary, where he mistakenly executed an affidavit of subscribing witness in the presence of a notary. The trial court found that because it was the testator's intent that the document be his will, the will should be admitted to probate.
The Court reversed and found that because the will failed to conform to the requirements of F.S. 732.502 because the decedent did not sign at the end of the will and the self-proof affidavit was insufficient to rectify his incomplete signature.
The Court recognized that in construing a will, the primary consideration is the intent of the testator. But it noted that before it can consider testamentary intent, the will must be validly executed in strict compliance with F.S. 732.502, which requires a testator to execute a will at the end of the document or the testator's name must be subscribed at the end of the will by some other person in the testator's presence and at the testator's direction. Here, the record was clear that the decedent signed something less than his full customary signature. While it is possible for a testator to sign a will by making a mark not commonly regarded as a formal signature, there was no evidence that the decedent intended his first name to serve in place of his signature. Instead, it was clear that he intentionally stopped signing at his wife's direction and that he tried to correct the issue with the improper self-proof affidavit, which the Court felt was an acknowledgment that he had not fully signed the document the day before. As a result, the Court found that the will should not have been admitted to probate.