Florida Probate and Trust Litigation Blog

A Decedent’s Partial Signature Renders Will Invalid

Case Law Update - Bitetzakis v. Bitetzakis, 264 So.3d 297   

In Florida will and trust contests, a challenge can be made to the executed formalities to challenge the validity of the instrument. A good lawyer will analyze whether all of the witnesses properly signed in the presence of each other, what the circumstances of signing looked like, and what the testator was doing at any given moment.

One of the often overlooked parts of execution, however, is the signature. There has been plently of lawsuits in Florida dealing with the location of the signature (it must be at the end) but if the decedent signed on their own signature line, the issue is often overlooked. Good lawyers compare the signature with the decedent’s prior signatures to find out whether anything is out of the ordinary. That is exactly what happened in the recent case out of Florida’s Second District Court of Appeals in Bitetzakis v. Bitetzakis.

As many know, the basic rule governing execution of a will is under Florida statutes 732.502, which provides 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.” 

In Bitetzakis, there was a challenge to a will on the grounds that it was not executed with the statutory formalities of 732.502. At an evidentiary hearing, the probate court heard the following evidence:

• On the date of the attempted signing, the Decedent, his wife, and two witnesses met at the Decedent’s kitchen table where they met weekly for breakfast.
• Witness 1 testified that the Decedent asked him to sign as a witness to the will and he did.
• Witness 2 testified that he signed as a witness to the will. And that after he signed, the Decedent began to sign the will but stopped at his wife’s direction.
• The wife testified that the Decedent began signing his name and that she directed him to stop because she believed that he needed to sign before a notary.
• The wife testified that only the Decedent’s first name appeared on the signature line of the will. Not his last name. And, that the Decedent normally wrote his entire name when signing documents.
• The wife further testified that the next day, she and the Decedent brought a self-proof affidavit to a notary and that the Decedent signed that self-proof affidavit before the notary. Witness 1 and Witness 2 were not present for the signing of the self-proof affidavit and their signatures do not appear on the self-proof affidavit. The Decedent did not bring nor sign the will before the notary.

With those facts, the trial court ruled (1) that the document was signed in compliance with section 732.502; (2) the trial court specifically found that the testator’s intent was evident  by his starting to sign and he only stopped because his wife mistakenly believed he needed a notary present. And (3), the fact that the Decedent went to a notary the next day to sign the self-proof affidavit shows the Decedent’s intent that the will be his last will.

In reversing the probate court, the Second DCA held that the Decedent signing his first name on the signature line of the will was an incomplete signature, and that his later signing the self-proof affidavit was insufficient to rectify his incomplete signature.

The Court reasoned that although the primary consideration in construing a will is the intent of the testator, when testamentary intent is contained in a will, it can ONLY be effectuated if the will has been validly executed in compliance with the statute. In other words, evidence of intent doesn’t trump the formalities. The Court looked to the definition of “signature” in Black’s Law Dictionary, which, in essence, defines signature as one’s handwritten name as one ordinarily writes it.

The Second DCA reasoned that, under the unique circumstances of the case, it was clear that the Decedent signed something less than his full, ordinary, customary, signature, which didn’t meet the statutory formalities. To buttress that conclusion, the Second DCA further analyzed that although testators can satisfy the rule by placing a “mark” at the end of the will with the intent that it constitute a signature. Here, the Court could not construe the first name as a mark because there was no evidence the Decedent intended for his first name to be evidence of his assent because he in fact stopped signing his name part way through.

So, when reviewing the document, Florida lawyers would be well advised to carefully compare the signature with prior signatures to see if it is consistent.

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