Is Ignorance REALLY Bliss?…Not When Signing a Will.

Many individuals do not understand the importance of the procedure of signing a will and/or a trust and may get frustrated when required to go to their attorney’s office to sign their documents. Many ask “why can’t I just go to the bank and do this” or “I am out of town. Can’t you just mail them to me and I will go to a bank here”. It is extremely important the signing is done under the review of the attorney or their assistants in accordance with Florida law.

A recent case, Bitetzakis v. Bitetzakis, illustrates what happens when the signing is not done properly.

George passed away in January of 2017 and his grandson, Greg, was appointed personal representative. Greg filed the will and petitioned for the will to be admitted to probate. George’s daughter Alice, responded to the petition, stating that the will had not been signed in accordance with Florida law.

At the hearing, evidence was presented regarding the actual signing. George, his wife and 2 witnesses, Tom and Santiago, gathered in George’s kitchen to sign. Tom and Santiago both signed as witnesses at George’s request. Interestingly, the statute does not require that the witnesses sign AFTER they see the testator sign but, of course, best practice would do so.

George then started to sign and completed his first name (normally he signed using his first and last name), but at his wife’s direction, discontinued signing because his wife believed that George’s signature HAD to be notarized.

The next day George went to a notary and, rather than take the will, George signed a self proving affidavit in the presence of a notary. Tom and Santiago’s signatures were not on the self proving affidavit.

The lower court determined that the will was prepared in accordance with Florida law and that the “testator’s intent is evident by his starting to sign and he only stopped signing his last name when his wife mistakenly told him that he needed a notary”. Further “the fact that he went to a notary…shows his intent that this be his last will and testament albeit he had a notary…notarize his name on-on[sic] the wrong document.”

On appeal Alice argued that the will did NOT conform to Florida law as the decedent did NOT sign at the end of the will and the later signature on the self proving affidavit was not sufficient to rectify the signature. The appellate court agreed with Alice.

The appellate court determined that the evidence did not establish the that George signed his name at the end of the will as is required by Florida law. Quoting Black’s Law Dictionary, a signature is “one’s handwritten name as one ordinarily writes it” and the “handwriting of one’s name in one’s usual fashion”.

While Florida law allows a person to sign by making a mark, the court determined that the signing of George’s first name was not the equivalent of making a mark as there was no evidence that George intended the signing of his first name to be a mark to serve in place of his signature. Rather the decedent intentionally stopped signing.

Thus, the appellate court found for Alice and determined that the will was not properly signed. Under Florida law, if there is no valid will, then the intestate statute will apply. Apparently, as Alice brought this lawsuit, Alice will inherit more if the will is found invalid. Unfortunately, this may have been exactly what George wanted to avoid. A costly mistake for a signing error.

ADVICE: If you supervise signing of wills, then use the same procedure each time. It is easy to forget the simple act of signing properly when discussing the documents and making sure documents are drafted properly. Also make sure that the witnesses, the testator, the testratix or the notary do NOT leave the room while signing. If you are an individual who is frustrated that you can not sign these documents yourself, then this case illustrates the importance of the procedure and ignorance of the law is not a defense. Unfortunately, if George intended to cut out or reduce Alice’s share, then his intent was not accomplished. Remember also that the testamentary aspects of a revocable trust MUST be signed with the same formalities of a will. Maintain the same procedure with a trust signing as most trusts have testamentary provisions.

Word of the Week. A Florida notary public is a public officer appointed by the governor of the state to administer oaths, solemnize marriage and other duties as provide under Florida law. An interesting issue pointed out to this author recently is the inability for a lawyer to notarize if they have a financial interest in the document. An attorney may notarize if he or she has no interest in the document other than the fee paid to him or her for legal services. What if, after proper disclosure and the client’s consent, a lawyer is named as personal representative or trustee? Can he or she notarize the client’s signature? Be careful.

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