Bitezakis v. Bitezakis

Bitezakis v. Bitezakis, 264 So.3d 297 (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.

Comments

  1. HamzaMarch 15, 2019 at 1:37 AM

    This comment has been removed by a blog administrator.

    ReplyDelete
  2. UnknownMarch 20, 2019 at 2:45 PM

    Its actually Bitetzakis and there is alot more to this sory

    ReplyDelete

Post a Comment

Popular posts from this blog

Goodstein v. Goodstein

Goodstein v. Goodstein ,  263 So.3d 78 (Fla. 4th DCA 2019) I started this blog in 2013, and this is the first time I have the opportunity to write about a case that I am actually involved in. This case involves a long-running dispute between the father of the decedent, the personal representative of the estate, and the decedent's children, the beneficiaries of the estate (the personal representative's grandchildren). The personal representative appealed a decision by the trial court which required all estate assets to be placed in a restricted depository. Restricted depositories have been common-place in Miami-Dade County for quite some time. Recently, South Palm Beach County has instituted as similar requirement. As a matter of course, all estates opened since the introduction of this policy have been required to place all assets in a restricted depository and assets may only be withdrawn with a court order. Here, the beneficiaries had concerns about their actions a...
Read more

Malleiro v. Mori, Mori and Corallo

Malleiro v. Mori , 182 So.3d 5 (Fla. 3d DCA 2015) This case serves as a lesson in rarely used words buried in the Florida Probate Code.  The Court was asked to determine whether an unsigned notarial will executed in Argentina was a valid will under the Florida Probate Code.  The Court ultimately held that because the Argentine will was unsigned, even though it was a notarial will, it was a noncupative will prohibited by the Florida Probate Code. The testator executed a valid will in New York distributing her real and personal property located in the United States.  Four months later, she executed a second will in Argentina.  The Argentine will was not executed with the usual formalities of American wills.  Instead, the testator orally pronounced her testamentary wishes to a notary who transcribed them in the presence of three witnesses.  The testator orally approved the typewritten will in the presence of the witnesses, and the notary signed and st...
Read more

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell , --- So.3d --- (Fla. 3d DCA 2019) This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed. The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, ...
Read more