Validly Executed Will
A will that is not validly executed may be no more valuable than a table napkin. To the layperson, who has no experience in the law, minor details in a will are little to no importance. However, Florida Courts have routinely thrown out and disregarded wills that do not meet the strict requirements of Florida Statutes.
Florida Statutes, Section 732.502, provides the requirements for execution of a valid last will and testament.
A Will must be in writing
The first requirement is simple enough; the will must be in writing. Therefore, an oral will (sometimes called a nuncupative will) would be invalid and unenforceable under the statute (unless it was validly executed in another state).
A Signature is Required
Continuing on, a valid will must contain the signature of the testator. The testator is a legal term for a person who made the will, i.e., the person who signed the will. The most typical way that a will can be signed is by the signature of the testator at the end of the will. However, in certain circumstances, a testator may be unable to sign a will due to incapacity, in those cases; the testator’s name can be subscribed at the end of the will by some other person in the testator’s presence and at the direction of the testator.
Possible Signature Issues
One does not need to formally sign their full name to make a will valid. In fact, Florida law permits a testator to sign a will by simply making a mark. Therefore, a formal signature is not required. “[A) mark made by the testator at the proper place on his will with the intent that it constitutes his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement that he `sign’ his will.” See In re Williams’ Estate, 182 So.2d 10 (Fla. 1965).
A partial signature can raise a number of problems. If a Will is partially signed, one would think a Court would look to the intention of the parties to determine whether a will was validly executed. After all, the primary consideration in construing a will is the intent of the testator. See Allen v. Dalk, 826 So.2d 245 (Fla. 2002). That means, in effect, that a court will substitute its judgment for the judgment of the testator. However, the testamentary intent can only be determined if a will is validly executed in strict compliance with Florida Statutes, Section 732.502.
Recently, a case came out of the Second District Court of appeal with an unusual fact pattern which is illustrative of the problem of partial signatures in Bitetzakis v. Bitetzakis, 264 So.3d 297 (Fla. 2nd 2019). The fact pattern involved a person who began signing a will, midway through signing, a wife directed her husband to stop because she believed that the will needed a notary to be valid.
At that point in time, only the husband’s first name appeared on the will, while the husband typically wrote his entire name. The next day, the husband took a self-proof affidavit to a notary for execution. The self proof affidavit bore the husband’s signature and notary stamp, but did not contain two witness signatures and inappropriately stated that the husband was his own witness.
The Court determined because the husband only wrote his first name on the will because it was clear that the husband recorded less than his full customary signature and therefore, the will was not executed within the meaning of Florida Statutes, Section 732.502. Nor could the half signature be construed as a mark because there was no evidence that the husband had the concomitant intent that his first name serves in place of his signature.
As such, because the will was not validly signed, the will should not have been admitted into probate. In looking at the facts, the glaring issue is that the stopped signing short of his full signature based on a mistaken belief regarding a notary. This case illustrates what a thin line there is in some cases between a validly executed will and one that falls just short because of a seemingly minor technicality.
Need Two Subscribing Witnesses
Next, the signature of the testator signature or acknowledgment must be in the presence of at least two subscribing witnesses. There are other requirements, but importantly, the attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
What is a Codicil?
A codicil, which is an addition or supplement to a will that explains, modifies, or revokes a will or part of one, is only valid if it is executed under the same rigorous formalities as a will.
Self Proof, Not Required, But Strongly Recommended
Finally, and this is extremely important, a valid will needs not be notarized. However, in order to eliminate unnecessary expenses. I will delve more into why this is important in later blog posts. However, the reader’s digest version is that it reduces or possibly eliminates the need to take certain discovery, do depositions, or otherwise engage in fact-finding. All of which should reduce both the amount of time and money spent in probate. Thus the old adage, an ounce of prevention is worth a pound of cure is certainly true when it comes to self proof of a Will.
As demonstrated above, there are numerous pitfalls that inexperienced practitioners and non-attorneys can run into when drafting a Last Will and Testament. Our firm has represented many individuals in probate planning and estate administration cases. Call us now for a free review of your estate problem.
Florida Trusts and Estates Attorneys Matthew D. Weidner and Jason M. Kral have helped have utilized decades of combined litigation experience to help many clients resolve difficult issues relating to probate and estate settlement throughout the state of Florida including Tampa, St. Petersburg, and Orlando. If you or someone you know has any questions regarding these matters, please contact us at (727) 954-8752 for a free initial consultation.