Nothing illustrates a general principle better than a real-life example. In this post we give you the example of Bitetzakis v. Bitetzakis. It demonstrates why your estate planning documents should be created by, and their signing supervised by, an experienced estate planning lawyer. The perils of doing otherwise are enormous.
A Botched Signing
Florida Statute 732.502 outlines the requirements for the execution of a Last Will and Testament. The statute requires the Will to be in writing; signed at the end by the testator (or by a person directed to do so by the testator); and signed in the presence of two witnesses. Additionally, the witnesses must sign in the presence of the testator, as well as in the presence of one another. You can read the entire statute here.
On September 26, 2013 Gregory and Ana Bitetzakis, a married couple residing in Florida, gathered at their kitchen table with a friend, Thomas Rivera, and their pastor, Santiago Alequin. Gregory had created a do-it-yourself Will for himself, and now he asked Rivera and Alequin to sign it. Rivera signed first and Alequin followed. Gregory then began signing his own name, but stopped when his wife interrupted. For the Will to be valid, she thought he should sign his name in the presence of a notary. So at this point, the document displayed only Gregory’s partial signature: “Gregory B.”
The next day Gregory and his wife went to a notary. They did not bring the Will with them. They did bring a “self-proof affidavit.” (A self-proof affidavit, when properly done, eliminates the need for original witnesses to a Will to authenticate the document.) Gregory executed it and it was notarized. However the two original witnesses were not present and did not sign. The self-proof affidavit did not conform to legal requirements.
Will Challenged
Gregory died four years later, in January 2017. His grandson, the personal representative under the Will, submitted it to the probate court. Gregory’s daughter Alice objected, saying it should not be admitted to probate because it was not signed with all the formalities required by Florida law.
The probate court rejected Alice’s argument. It reasoned that Gregory’s signature, even though just a partial signature, along with his visit to the notary, was sufficient evidence that Gregory did indeed intend for the document to be his Last Will and Testament, and thus, the Will should be admitted to probate.
No Wiggle Room On Signing Requirements, Says Appeals Court
Alice appealed the decision to the Florida District Court of Appeal. It overturned the lower court, saying that to be valid, a Will must be signed in precise conformity to Florida statutes. While the court acknowledged that Gregory probably intended the document to be his Last Will and Testament, his failure to sign the document with his full, customary signature made it invalid. You can read the Appeals Court ruling here.
The Will was rejected, meaning Gregory died intestate – as if he never had a Will. His assets were to be distributed based on Florida intestacy law, regardless of the wishes expressed in his Will.
Conclusion
Consult a competent estate planning attorney for your estate planning! Most do-it-yourself sites and forms state they do not provide legal advice, nor accept responsibility for any problems or damages that result from using them. An experienced attorney will make sure your Last Will and Testament is properly drafted, serves your needs, and is signed in strict conformity with Florida law.
As the Bitetzakis case illustrates, there is no “wiggle room” when it comes to execution requirements, and there’s no going back to correct your mistakes once you’re gone. Any savings you may derive from a do-it-yourself document can open up your estate to challenges, invite family conflicts, cost more than you save, and drag out the handling of your final affairs. Please call our attorneys at 561-625-1100 for expert assistance.
