Skip to Content

Florida Will Contest: Signature Still Most Fundamental of the Wills Act Formalities


Florida Will Contest: Signature Still Most Fundamental of the Wills Act Formalities | Probate Litigation Attorney Thomas Upchurch, Daytona Beach. There are two key cases which have applied the standard of clear and convincing evidence to allow reformation in which the courts have allowed the reformation of the instrument. In re Estate of Robinson, 720 So. 2d 540 (Fla. 4th DCA 1998), the case dealt with a unilateral mistake. In Schroeder v. Gebhart, 825 So. 2d 442 (Fla. 5th DCA 2002), the case dealt with the intention of the word per stirpes. In both cases, the instruments were signed and the intent required clarification. For further reading on intent, refer to my blog on impact of settlor’s intent.

On the other hand, In Dalk v. Allen, 774 So. 2d 787, 791 (Fla. 5th DCA 2000), the will was not signed by the testator. In this case, the trust was signed but not the will. The decision by the court regarding a will not being executed reinforces the Will Act that a testator must strictly comply with the statutory requirements in order to create a valid will. See In re Bancker’s Estate, 232 So. 2d 431, 433 (Fla. 4th DCA 1970), cert. denied, 238 So. 2d 111 (Fla 1970).

In Dalk v. Allen also sets forth the prominent legal basis that “Signature is still the most fundamental of the Wills Act formalities.”


In re Estate of Robinson 1998 case of first impression, the Fourth District Court of Appeal announced the existence of a cause of reformation of a trust based upon mistake. The case dealt with the settlor’s surviving spouse seeking reformation of her husband’s trust to effectuate his alleged intent to fund her marital trust with one-third of the residuary estate before reduction for applicable transfer taxes.

The will contest issue arose when it was realized that the will was executed reflecting his intent to fund his wife’s marital trust with one-third of the residuary estate before reduction for applicable transfer taxes, when his trust directed the complete opposite.  The important issues in this case are: the will and the revocable trust were executed on the same day, and the will which reflected the settlor’s intent when he signed the trust.

Therefore, the probate court applied the standard of clear and convincing evidence and found that a unilateral mistake existed; and thereby, allowed the reformation of the trust instrument to conform to the settlor’s intent.


By 2002, the evidentiary burden that must be met before a court can reform a trust based upon a mistake was decided in the Fifth District Court of Appeal in Schroeder v. Gebhart. In this case, a dispute arose over how the use of the term per stirpes was intended to exclude beneficiaries who were removed from her intestacy family line by being adopted by an unrelated person.

The adopted family members’ law suit alleged that they were intended beneficiaries. Upon examination by the appellate court, it was determined that the adopted family members met their burden of proof for reformation.  Of significance is that while there was conflicting testimony, the drafting attorney’s testimony was the most relevant.

What sets this case apart is the drafting attorney was not informed that some of the settlor’s grandchildren had been removed by being adopted by another family member. The settlor’s use of the words that she wanted all five of her grandchildren to be beneficiaries of her trust supported the fact it was the settlor’s intent for the legal term per stirpes to include all of her grandchildren.

In addition, the significance of the omission was compounded by the fact that the settler more than likely was not aware that under section 63.172, Florida Statutes, that the adoption of a child by another family member terminates all legal relations between such child and natural parent. As a result, the adopted children were removed from intestacy or per stirpes designation.

The court held in this case that the drafting attorney and settlor “erroneously assumed” that a per stirpes disposition would distribute the property to all five of the settlor’s grandchildren regardless of whether or not the blood related grandchildren were considered intestate descendants. Relying on the precedent of Robinson case described above, the court reformed the trust to include settlor’s “removed” grandchildren as beneficiaries of the trust.


Dalk v. Allen, 774 So. 2d 787, 791 (Fla. 5th DCA 2000) was heard before the Florida Supreme Court and all the judges concurred with the 5th DCAs decision on August 29, 2002. In this proceeding, the certified question before the court was as follows:

May a constructive trust be imposed over the assets of an estate in favor of a beneficiary named in an invalidly executed will, where the invalidity is the result of a mistake in its execution, and the invalid will expresses the clear intention of the decedent to dispose of her assets in the manner expressed therein?

Basically, what this means is the certified question requires a ruling as to whether or not a constructive trust may be imposed if a will was not signed when the invalidly executed will may have expressed the decedent’s intent.

On May 7, 1999, Christel McPeak, a resident of Ocala, Florida died. Prior to her death, she had her attorney prepare three documents. Of those three documents, there was a will. McPeak met with her attorney and signed several documents, including four duplicate originals of the living will and designation of health care surrogate and three duplicate originals of the durable power of attorney. McPeak did not sign a copy of her will. After McPeak’s death, both her niece, Bonnie Allen (petitioner), and her half-sister, Margarete Dalk (respondent), filed separate petitions for administration with the circuit court.

The case was heard and an order was entered to admit the will to probate and appoint a personal representative. The court reasoned that the decedent ratified the typed signature contemporaneously with the signatures of the witnesses to the document. Failing that, the court ruled as a matter of law, a construction trust should be imposed in favor of the petitioner in the event that the will was not admitted to probate.

The circuit court’s decision was reversed by the Fifth District Court of Appeal. While the 5th DCA acknowledged that the decedent probably intended to sign the will, but found that there was no evidence to support the finding that the decedent intended the typewritten name below the signature line to be the signature. As a result, since the will was improperly executed, a constructive trust could not be imposed due to the fact that it would have had the effect of validating an invalid will.


The focus is the intent of the testator and the court’s primary consideration in construing a will. SeeElliott v. Krause, 531 So. 2d 74, 75 (Fla. 1987). Therefore, “[i]f possible, and when consistent with law and public policy, the testamentary intent of the testatrix is to be effectuated.” See id.  However, when testamentary intent is contained in a will, it can only be effectuated if the will has been validly executed.

Professor Langbein sums it up best with his take on the rare occasion when an unsigned will would be appropriate, such as a case where “the testator who publishes the document as his will to his gathered attesting witnesses and takes up his pen and lowers it toward the dotted line when an interloper’s bullet or a coronary seizure fells him.”

As of 2013, the law remains the same in that a testator must sign the will at the end and it must be acknowledged before two attesting witnesses.

If you need an experienced attorney in Volusia County, Flagler County, Sumter County, Putnam County, Hillsborough County, Miami-Dade County, Broward County, or Palm Beach County contact Florida Probat and Trust Litigation Attorney Thomas Upchurch at (386) 272-7445 or you may contact Upchurch Law using the contact page.


This blog post only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm or my past clients, and is not sponsored or endorsed by them. The case-specific information contained in this blog post is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted on this blog site. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

The post Florida Will Contest: Signature Still Most Fundamental of the Wills Act Formalities appeared first on Upchurch Law.

Share To: