Just How Strictly Must You Comply with Will Formalities?
Creating a will might sound like something you can do easily on your own. After all, there are countless computer programs and websites that exist to help people make their own will without an attorney’s help.
However, Florida’s laws regarding the proper creation and execution of a will are unforgiving. There are certain “formalities” that you must follow. And if you don’t, then even a perfectly-good will could be tossed out of probate court. Contact one of our estate planning lawyers in The Villages to get started on your will today.
What Are Florida’s Formalities?
Florida, like most states, adopted its law on wills from the United Kingdom, in particular the Wills Act of 1837. You can find Florida’s formalities in Florida Stat. § 732.502. This statute lays out the requirements for executing a valid will or codicil:
- The person creating the will (the testator) must sign at the end of the will or direct someone to sign for them in the testator’s presence.
- The testator must sign or acknowledge the signature in the presence of two witnesses.
- The two witnesses must also sign the will in the testator’s presence and in the presence of each other.
Florida requires strict compliance with these formalities, meaning that you absolutely must satisfy them. There is no “good enough” standard, like there can be with ordinary contracts.
How Strict is Compliance?
The recent case Bitetzakis v. Bitetzakis illustrates just how strictly testator’s must comply with the formalities. In that case, the husband decided to execute a will and started to sign his name in the presence of two witnesses. But his wife stopped him midway through, believing (wrongly) that he needed to sign the will in front of a notary public. The couple then went to a notary, where the husband ended up signing a self-proving affidavit instead of his will.
When the husband passed, the grandson as personal representative introduced the will with half of a signature to the probate court. However, a daughter challenged the will as not properly signed. The trial court accepted the will as valid, but the Florida Second District reversed the trial court on appeal.
The Second District held that the deceased did not sign his “full customary signature” at the end of the will. Instead, he signed only half his name. Though he intended to sign, and though witnesses testified to this effect, the law requires strict compliance.
Of course, as the appellate court noted, a mark on the signature line can sometimes qualify as a signature. However, the testator must intend that the mark serve as his signature. Here, the opposite was true. Based on the testimony elicited in court, the testator did not intend for half of his name to serve as his signature. In fact, he deliberately stopped signing halfway through so that he could sign his full name in front of a notary. For that reason, the appellate court found the signature was invalid.
Let Us Help You Comply with Florida’s Will Formalities
The decision in the above case probably seems unfair, but that is the law in Florida. For help ensuring that you properly execute a will, contact Millhorn Elder Law Planning Group today by calling 800-743-9732.
Resource:
scholar.google.com/scholar_case?case=813544139630038811&q=bitetzakis&hl=en&as_sdt=4,10
https://www.millhorn.com/protecting-against-medical-identity-theft/