Switched at Execution: Don’t Let It Happen to You

The execution of one’s final will and testament is something to be taken very seriously. The permanent and inevitable nature of death means that attention to detail is paramount to ensuring your final wishes are fully set forth, and that your loved ones have a clear roadmap to carrying out those wishes. Sadly, the consequences of a flawed execution can undermine your will altogether, as Florida courts require strict compliance with the applicable state statutes in order for a will to be valid and effective in Florida. Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002). One issue that occurs with sufficient frequency to be a staple of law school textbooks and the subject of numerous expensive legal battles is a situation involving a “signature swap” during the execution of a will.

Spouses often draft and sign their wills concurrently, and their respective wills are often very similar in form and content. If the wills are accidentally switched prior to or at the signing, a potential result will be that both wills are nullified and invalid. The most famous case of a court’s strict adherence to signing formalities in this respect occurred in Pennsylvania, when a husband and wife retained a lawyer who drafted identical wills for the couple, who then inadvertently signed the will of the other spouse. In re Estate of Pavlinko, 394 Pa. 564, 148 A.2d 528 (1959). The Supreme Court of Florida cited this Pennsylvania case in arriving at a similar holding, restating that “[o]nce a Court starts to ignore or alter or rewrite or make exceptions to clear, plain and unmistakable provisions of the Wills Act in order to accomplish equity and justice in that particular case, the Wills Act will become a meaningless, although well intentioned, scrap of paper, and the door will be open wide to countless fraudulent claims which the Act successfully bars.” Allen v. Dalk, 826 So. 2d 245, 249 (Fla. 2002).

Such harsh results stem from how seriously many courts take the formalities of execution. These will execution formalities are intended to (1) prove authenticity, (2) impress the importance of execution on the testator, (3) prevent excessive influence from others, and (4) standardize administration in the probate court system. If the formalities are not adequately fulfilled, courts exhibit little hesitancy in invalidating an improperly executed will and using the state statutory (intestate) scheme for disposing of a decedent’s property. That is why it is never a good idea to do to draft and/or execute a last will and testament, or any other testamentary device, without consulting an experienced professional that you can trust, as the devil is in the details and there is typically no “second chance” to correct an error in a testamentary instrument.

Do not let yourself become a victim of “signature swap.” Consult with an estate planning expert to assist you in drafting your estate documents and attend to the legal technicalities and formalities while giving you the individual attention you deserve. If you or someone you know has questions about executing or updating a will or trust, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with you with all of your estate planning needs. Please feel free to contact us for an initial consultation.

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