              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

ALICE BITETZAKIS,                        )
                                         )
             Appellant,                  )
                                         )
v.                                       )           Case No. 2D17-4822
                                         )
ANA ESTER BITETZAKIS and                 )
GREGORY BITETZAKIS, as nominated )
personal representative of the Estate of )
Gregory Bitetzakis, deceased, and        )
CONNIE BITETZAKIS,                       )
                                         )
             Appellees.                  )
________________________________ )

Opinion filed February 1, 2019.

Appeal from the Circuit Court for
Hillsborough County; Catherine Catlin,
Judge.

Joshua S. Widlansky of Padula Bennardo
Levine, LLP, Boca Raton, for Appellant.

D. Michael Lins of Lins Law Group, P.A.,
Tampa, for Appellee Gregory Bitetzakis,
personal representative.

Bernard A. Jackvony of Pannone Lopes
Devereaux & O'Gara LLC, Boca Raton,
and John R. Hargrove of Hargrove Law
Group, Boca Raton, for Appellee Connie
Bitetzakis.

No appearance for Appellee Ana Ester
Bitetzakis.
NORTHCUTT, Judge.

              Alice Bitetzakis appeals a probate court order admitting her father's

purported will to probate. We reverse because the will in question was not executed in

strict compliance with the signature requirement of section 732.502, Florida Statutes

(2013).

              The decedent, George Bitetzakis, passed away in January 2017. His

grandson was appointed personal representative and petitioned for the administration of

a will dated in September 2013. The decedent's daughter, Alice Bitetzakis, responded

to the petition, alleging inter alia that the will had not been executed in compliance with

the statutory formalities set forth in section 732.502. Pertinent to this appeal, Alice

Bitetzakis specifically alleged that the decedent did not sign the purported will within the

meaning of the statute.

              At an evidentiary hearing, the probate court heard testimony that the

decedent undertook to execute his will at his home on the morning of September 26,

2013.1 The decedent, his wife, and two witnesses—Thomas Rivera and the parties'

pastor, Santiago Alequin—had gathered in the Bitetzakis' kitchen, where the parties met

for weekly breakfasts. Rivera testified that he was the first person to sign as a witness

and that he did so at the decedent's request. Alequin was the second to sign as a




              1In the will's attestation section, the parties left blank the space provided to
indicate the date of signing. The decedent later filled out a self-proving affidavit which
indicated that he signed his will on September 27, 2013, a Friday. However, testimony
during the hearing demonstrated that the will must have been executed on September
26, 2013.
                                            -2-
witness. Alequin stated that after he signed, the decedent began to sign the will but

stopped at his wife's behest.

               Ana Bitetzakis, the decedent's wife, testified that she was present on the

occasion and recalled that the decedent asked Alequin and Rivera to sign the will. Ana

also testified that she observed the decedent begin to sign the will, but she directed him

to stop because she believed that he needed to sign before a notary. She confirmed

that only the decedent's first name appeared on the signature line of the will, and she

related that the decedent normally wrote his entire name when signing documents.

               Ana further testified that the next day, September 27, 2013, she took the

decedent to a notary. The decedent did not bring the will, but instead brought another

document which turned out to be a self-proof affidavit titled "Affidavit of Subscribing

Witnesses." See generally § 732.503 (providing that wills may be self-proved by way of

a separate affidavit sworn and signed by the subscribing witnesses to the will's

execution). The self-proof affidavit bears the decedent's signature and the notary's

stamp but incongruously avers that the decedent served as a witness to himself

executing his own will. Rivera's and Alequin's signatures do not appear on the self-

proof affidavit.

               At the conclusion of the proceedings, the probate court announced its

ruling:

                       So with regard to the signing of the document, I'm
               finding that the document was signed in compliance with
               [section] 732.502 . . . . I'm also finding that the testator's
               intent is evident by his starting to sign and he only stopped
               signing his last name when his wife mistakenly told him that
               he needed a notary. He in fact did not need a notary. So
               that did not do away with his intent that this be his last will
               and testament. Additionally, the fact that he went to a notary

                                            -3-
              the next day further shows his intent that this be his last will
              and testament albeit he had a notary, you know, notarize his
              name on—on the wrong document.

In its written order, the probate court further found in pertinent part:

                     3. Although the testator, Gregory Bitetzakis, only
              signed a portion of his name, the Court finds that he
              intended this Will to be his last will and testament and he
              stopped his signature on the mistaken belief that he needed
              a notary present.

                     4. The fact that the testator, Gregory Bitetzakis,
              intended this Will to be his last will and testament is
              supported by his going the following day to a notary and
              signing the document entitled "Affidavit of Subscribing
              Witnesses" in front of the notary.

Alice Bitetzakis timely appealed the probate court's order. We have jurisdiction. See

Fla. R. App. P. 9.170(b).

              On appeal, Alice Bitetzakis argues that the decedent's will fails to conform

to the requirements of section 732.502 because the decedent did not sign at the end of

the will and the decedent's later signing of the self-proof affidavit was insufficient to

rectify his incomplete signature. We agree.

              Generally, "[t]he primary consideration in construing a will is the intent of

the testator." Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002) (citing Elliott v. Krause, 531

So. 2d 74, 75 (Fla. 1987)). However, "when testamentary intent is contained in a will, it

can only be effectuated if the will has been validly executed" in strict compliance with

section 732.502, Florida Statutes. Id. (emphasis added). Section 732.502(1)(a)

dictates that in order to properly execute a will, the testator "must sign the will at the

end" or else the testator's name "must be subscribed at the end of the will by some

other person in the testator's presence and by the testator's direction."



                                             -4-
              In this case, the probate court erred because the evidence does not

establish that the decedent signed at the end of the will or directed another to subscribe

his name in his stead. See Dalk, 826 So. 2d at 247 ("[W]here a testator fails to sign his

or her will, that document will not be admitted to probate."). Under these very unique

circumstances, it is clear that the decedent recorded something less than his full

customary signature and therefore did not sign the will within the meaning of section

732.502. See Signature, Black's Law Dictionary (10th ed. 2014) (defining a signature

as a "person's name or mark written by that person . . . esp., one's handwritten name as

one ordinarily writes it" and "the act of signing something; the handwriting of one's name

in one's usual fashion").

              To be sure, Florida law permits a testator to sign a will by making a mark

not commonly regarded as a formal signature. See In re Williams' Estate, 182 So. 2d

10, 12 (Fla. 1965) ("[A] mark made by the testator at the proper place on his will with the

intent that it constitute his signature and evidence his assent to the will is sufficient to

satisfy the statutory requirement that he 'sign' his will."). However, in this case we

cannot construe the decedent's alphabetic first name as constituting his mark because

there is no evidence that the decedent had the concomitant intent that it serve in place

of his signature. In other words, there is no evidence that the decedent signed his first

name "with the intention that [a portion of his signature] evidence his assent to the

document." Id. at 13. To the contrary, that the decedent intentionally ceased signing

the will and later signed the self-proof affidavit in an apparent attempt to ratify it dispels

any notion that he believed or intended that his first name serve as his signature and

assent to the will.



                                             -5-
             The probate court erred in admitting the unsigned will to probate.

Accordingly, we reverse the order on execution and attestation of the decedent's will.

             Reversed and remanded.


CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                          -6-
