What happens if a will is not signed in Florida?

A Florida last will and testament will not be probated or enforced if it has not been signed by the testator or by one of the required witnesses. In order for a last will and testament to be probated in Florida, the will must (1) be signed by the testator at the end of the will, (2) in the presence of two witnesses, (3) who themselves sign that same will, (4) in the presence of the testator, and (5) in the presence of each other. The very first requirement is that the will be signed by the testator. If the will is not signed by the testator, it cannot be probated and thus will not be enforced. The same is true if the will is not signed by one of the two required witnesses. Thus, it is clear that all three signatures are required in Florida.

However, Florida courts have sometimes interpreted this rule broadly, allowing some wills to be probated that do not appear at first glance to satisfy the requirements. The cases below provide some insight into how far this rule can be stretched while still admitting a will into probate. That being said, these cases should not be used as an excuse to leave signatures off of a will. The safest bet is always for everyone to sign both the attestation clause in a will and the self-proving affidavit.

Unsigned Will but Signed Self-Proving Affidavit

What happens if the will itself is not signed but the will includes a self-proving affidavit which was signed? The answer to this question likely depends on whether the self-proving affidavit is a part of the will itself or is a separate document. In the case of In re Estate of Charry, two witnesses signed on the self-proving affidavit but not on a separate attestation clause in the will. [1] The question before the court was whether these witness signatures counted as witnessing the will. Somewhat surprisingly, the court held that the witness signatures did count and that the will was valid. In its reasoning, the court noted that “attestation clauses and self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts of it.” In other words, if the self-proving affidavit is incorporated into the will, then it is is considered to be a part of that will and the signatures on the affidavit will most likely count as signatures on the will itself. However, if the self-proving affidavit is a separate document, then the signature on the affidavit cannot serve as the signature at the end of the will.

The importance of incorporating the self-proving affidavit can be further seen in the case of Bitetzakis v. Bitetzakis. [2] In Bitetzakis, the attestation clause of a will was left unsigned by the testator while the self-proving affidavit was properly signed days later. However, unlike Charry, the self-proving affidavit was not incorporated into the will, but was instead “another document”. The court ruled that the will was not validly executed. Although the court did not explain its reasoning the signature on the self-proving affidavit to be sufficient, the court’s holding is consistent with the reasoning in Charry. Signatures on unincorporated self-proving affidavits are not signatures on a will, but signatures on incorporated self-proving affidavits are.

This is why I explicitly incorporate the self-proving affidavit into every will I create. The affidavit is referenced in the will to be a part of that will and is given a page number within the will to further establish its inclusion. This is a built-in redundancy, a layer of protection to ensure that the will is probatable. Even if a signature is somehow forgotten/overlooked in the attestation clause, the signatures from the self-proving affidavit will still be there to meet the signature requirements listed above. However, it is always wise to sign both the attestation clause and the self-proving affidavit.

Not Testator Signature but Scrivener Signature Instead

What happens when the testator does not sign but a scrivener signs in the testator’s place, both as a proxy for the testator and as a witness? This is exactly the situation that came up in the case of In re Lomineck's Estate. [3] In Lomineck, a scrivener signed in place of the testator and with only a single valid witness. At first glance, the will in Lomineck appears to be invalid. However, the court held that the scrivener’s signature could substitute for the testator and that the same signature could double as a witness signature! Thus, the will was valid. Again, this is not a rule that I would have my clients test, but apparently a single scrivener signature can do double duty when it comes to wills.

What do I do if my will isn’t signed?

If your will is missing a signature, you need to have your will properly executed. Even if you think you fall into one of the strange situations discussed above, you should play it safe and ensure your documents properly executed. If nothing else, you should do this to avoid confusion and litigation. So if your will is missing a signature somewhere, it is time to re-execute that will or to get a new will with the proper signatures in place. You should also get a notary involved to execute a self-proving affidavit as part of the will.

If your will is missing a signature, it is possible that your estate plan contains other problems as well. You should consider having an estate planning attorney review your estate plan and ensure that it accomplishes all your goals. Estate planning is a complex area of law, and it helps to have a lawyer guiding you through the process.

References

[1] In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978). In addition, the Fifth District Court of Appeal came to the same conclusion in Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1992).

[2] Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019).

[3] In re Lomineck's Estate, 155 So. 2d 561 (Fla. 1st DCA 1963).