Florida District Courts of Appeal, 1994

Bain v. Hill

Florida District Courts of Appeal · Decided July 5, 1994 · Goderich, Jorgenson, Schwartz

639 So. 2d 178; 1994 Fla. App. LEXIS 6609; 1994 WL 316560 (Southern Reporter, Second Series)

Opinion of the Court

SCHWARTZ, Chief Judge.

This is an appeal from an order admitting a will to probate after an evidentiary hearing. We affirm.

The conclusion below that the testator signed at the “end” of his will, § 732.-502(l)(a)l, Fla.Stat. (1993),1 is squarely supported by Bradley v. Bradley, 371 So.2d 168 (Fla. 3d DCA 1979), in which, incredibly, the testator signed the will at the same erroneous place on the same Rameo form as Mr. LeDuc. We also reject the alternative claim that the attestation of the will was insufficient under section 732.502(l)(b) & (c)2 because there was evidence that at least one of the witnesses signed before the testator. Even if this were the ease, we agree with Waldrep v. Goodwin, 230 Ga. 1, 196 S.E.2d 432 (1973) that so long as (a) the witnesses saw the testator sign the will and (b) they signed it in his presence and that of each other, the order in which this occurred makes no difference. As the court stated:

[T]here can be no fraud when [as in the present case] all parties sit at the same table and affix their signatures in the presence of each other regardless of who signs first.

Waldrep, 195 S.E.2d at 435; accord In re Estate of Lee, 225 Cal.App.2d 578, 37 Cal.Rptr. 572 (1964); Conway v. Conway, 14 Ill.2d 461, 153 N.E.2d 11 (1958); Hopson v. Ewing, 353 S.W.2d 203 (Ky.App. 1961); Wilkinson v. White, 8 Utah 2d 336, 334 P.2d 564 (1959).

Affirmed.

. Execution of wills. — Every will must be in writing and executed as follows:

(l)(a) Testator’s signature.—

1. The testator must sign the will at the end; or

2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by his direction.

(b) Witnesses. — The testator's:

1. Signing, or

2. Acknowledgment:

a. That he has previously signed the will, or

b. That another person has subscribed the testator's name to it,

must be in the presence of at least two attesting witnesses.

(c) Witnesses’ signatures. — The attesting witnesses must sign the will in the presence of the testator and in the presence of each other....

§ 732.502, Fla.Stat. (1993).

. Ibid.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.