In its opinion in Bitetzakis v. Bitetzakis, Case No. 2D17-4822 (Fla. 2d DCA Feb 1. 2019), Florida’s Second District Court of Appeal recently held that an individual signing a will must strictly comply with the signature requirements of section 732.502, Florida Statutes, for the will to be recognized as valid and admitted to probate. The court’s ruling emphasizes the importance of properly executing a will in accordance with Florida law.
Section 732.502, Florida Statutes, provides that every will must be in writing and executed in a specific manner. First, the testator (the person making the will) must either (a) sign the will at the end or (b) have the testator’s name subscribed at the end by someone in the testator’s presence and by the testator’s direction. Furthermore, the testator must sign the will (or acknowledge he or she previously signed it or that another person has subscribed the testator’s name to the will) in the presence of at least two attesting witnesses. The attesting witnesses must sign the will in the presence of each other and in the presence of the testator.
Additionally, section 732.503, Florida Statutes, provides that wills may be self-proved by way of a separate affidavit sworn and signed before a notary by the testator and the subscribing witnesses to the will’s execution.
In Bitetzakis, the testator gathered in his kitchen on September 26, 2013, with his wife and two witnesses to execute his will. After the two witnesses signed, Mr. Bitetzakis began to sign his name but stopped at his wife’s behest. Mr. Bitetzakis’ wife testified that she directed him to stop signing the will because she believed he needed to sign before a notary. She confirmed that only Mr. Bitetzakis’ first name appeared on the will, and that he normally wrote his entire name when signing documents.
The next day, on September 27, 2013, Mr. Bitetzakis’ wife took him to a notary. Instead of bringing the will, Mr. Bitetzakis brought a self-proof affidavit to be signed before the notary. The self-proof affidavit was signed by Mr. Bitetzakis before the notary but stated that Mr. Bitetzakis himself served a witness to himself executing his own will. The witnesses who signed the will the prior day did not sign the self-proof affidavit.
Mr. Bitetzakis’ will was admitted to probate upon his death, and the order admitting the will was subsequently appealed to the Second DCA by Mr. Bitetzakis’ daughter. On appeal, the Second DCA held that Mr. Bitetzakis’ will failed to conform to the requirements of section 732.502 because Mr. Bitetzakis did not sign at the end of the will, and his later signing of the self-proof affidavit failed to rectify his incomplete signature. In ruling that Mr. Bitetzakis’ partial signature was insufficient, the Second DCA noted that Mr. Bitetzakis failed to sign his full customary signature in the manner he would ordinarily write it. Further, the Second DCA held the partial signature could not be considered as Mr. Bitetzakis making his mark to sign the will because there was no evidence that he signed his first name with the intention that his partial signature evidenced his assent to the document.
The Bitetzakis opinion provides a good reminder of the importance of properly executing one’s will in compliance with Florida law. Absent proper execution, the testator’s desires and intentions with respect to the disposition of his or her property upon death may not be upheld by Florida courts.