       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      ARLYNE BETH HELFENBEIN,
                              Appellant,

                                     v.

                            ESTELLE BAVAL,
                               Appellee.

                              No. 4D13-2366

                            [February 18, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mel Grossman, Judge; L.T. Case No. 10-5600.

  Scott A. Weiss of Selzer & Weiss Attorneys at Law, Fort Lauderdale, for
appellant.

  Douglas F. Hoffman of Rudolf & Hoffman, P.A., Fort Lauderdale, for
appellee.

STEVENSON, J.

    Arlyne Helfenbein (“Daughter”) appeals an order granting Estelle
Baval’s (“Wife”) motion for summary judgment and finding that she is
entitled to take an elective share of her deceased husband’s estate. We
find that a genuine issue of material fact remains and reverse and remand
for further proceedings.

Facts
    Bernard Baval (“Testator”) died on October 29, 2010. Daughter was
named personal representative of Testator’s estate. Seeking clarification
of the correct will to admit to probate, Daughter submitted two wills signed
by Testator: one from 1982 (“1982 Will”) and one from 2007 (“2007 Will”).
The 1982 Will contained Wife’s waiver of her right to an elective share.
Under the 2007 Will, which revoked all previous wills and did not contain
a waiver of Wife’s right to an elective share, Daughter was afforded
discretion to give Wife $150,000 from Testator’s estate.

   Before any will was admitted to probate, Wife filed a petition to take her
elective share under Testator’s estate and filed a motion for summary
judgment on her entitlement to an elective share. Daughter responded to
Wife’s motion and argued that the 2007 Will was invalid.1 To support this
assertion, she attached the affidavit of Murray Adler, a witness to the 2007
Will. Murray Adler alleged that he did not sign the will in the presence of
the other witness and that he did not see Testator sign the will.

    Following a hearing, the trial court granted Wife’s motion, finding that
the 2007 Will was not facially invalid “simply because the self-proving
affidavit was executed at a date subsequent to the date of execution of the
2007 will” and quoting section 732.503, Florida Statutes (2007), in
support thereof. It also found that the waiver attached to the 1982 Will
applied to only that will and not to any subsequent will. Following
Daughter’s motion for rehearing, the trial court clarified that the 2007 Will
was executed in conformity with section 732.502, Florida Statutes (2007).2

Analysis
  This case turns heavily on the validity of the 2007 Will.                   Section
732.503(1), Florida Statutes (2007), provides:


1 Hypothetically, if the 2007 Will was found to be invalid, then the 1982 Will
arguably could be revived under the doctrine of dependent relative revocation,
and Wife would not be entitled to an elective share due to her waiver. See Rosoff
v. Harding, 901 So. 2d 1006, 1009 (Fla. 4th DCA 2005) (stating the doctrine of
dependent relative revocation “‘simply . . . means that where testator makes a
new will revoking a former valid one, and it later appears that the new one is
invalid, the old will may be re-established on the ground that the revocation was
dependent upon the validity of the new one, testator preferring the old will to
intestacy’”) (quoting Stewart v. Johnson, 194 So. 869, 870 (Fla. 1940)).

2   Section 732.502(1)(a)–(c), Florida Statutes (2007), provides:

         Every will must be in writing and executed as follows:
         (1)(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 the testator’s
         direction.
         (b) Witnesses.--The testator’s:
         1. Signing, or
         2. Acknowledgment:
         a. That he or she 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.

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         A will or codicil executed in conformity with s. 732.502 may
         be made self-proved at the time of its execution or at any
         subsequent date by the acknowledgment of it by the testator
         and the affidavits of the witnesses, made before an officer
         authorized to administer oaths and evidenced by the officer’s
         certificate attached to or following the will . . . .

Section 732.503(1) contemplates that the will is already in compliance with
section 732.502 before turning to section 732.503(1). Murray Adler’s
affidavit, wherein he alleged he did not sign in the presence of the other
witness, suggests that the March 2007 execution failed to comply with
section 732.502. In order to properly execute a will under section 732.502,
“[t]he attesting witnesses must sign the will . . . in the presence of each
other.” § 732.502(1)(c), Fla. Stat. (2007). Adler’s allegation that he did not
sign in the presence of another witness creates a genuine issue of material
fact as to the initial execution of the 2007 Will. See Simpson v. Williamson,
611 So. 2d 544, 547 (Fla. 5th DCA 1992) (finding there was a genuine
issue of material fact as to the execution of a will when a witness submitted
an affidavit stating he was not present when three others signed the will).

   The second set of signatures, dated April 23, 2007, which served to act
as a self-proof clause, is also problematic. The notarized paragraph lists
four people (Testator and three witnesses); however, only Testator and two
witnesses signed.3 On its face, the self-proof clause raises an issue as to
the veracity of Testator and the two signing witnesses because they “were
sworn and declared to the undersigned . . . that each of the Witnesses, in
the presence of the Testator and each other, signed the will as a witness.”
This discrepancy concerning who was present raises an issue as to the
entire execution of the self-proof clause.

   In Simpson, the testator, two witnesses and the testator’s attorney (in
the capacity of a notary public) signed a will and a self-proof clause. 611

3   The self-proof clause provided:

         We, Edward Hessing, Murray S. Adler, Nancy J. Leyton, and
         Bernard Baval (Testator) the Testator and the Witnesses,
         respectively, whose names are signed to the attached and foregoing
         instrument, were sworn and declared to the undersigned that the
         Testator signed the instrument as his or her Last Will and
         Testament and that each of the Witnesses, in the presence of the
         Testator and each other, signed the will as a witness.

Testator, Nancy Leyton and Edward Hessing all signed the self-proof clause;
despite being listed, Murray Adler did not sign.

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So. 2d at 545. One of the witnesses later submitted an affidavit, alleging
that he did not see the testator sign the will nor did he sign in the presence
of the other witness. The witness further alleged that, at the time he signed
the self-proof clause, the testator and the second witness had already
signed it, but it had not yet been notarized. Id. The notary public (the
testator’s attorney) submitted an affidavit, in which he alleged that he, the
testator and the two witnesses all signed in the presence of each other. Id.
Proponents of the will argued that the witness’s affidavit was not
dispositive because the notary public could serve as the required second
witness. Id. at 546.

   The Fifth District disagreed with the proponents of the will and, instead,
found there was a genuine issue of material fact remaining as to the
execution of the will. The court found that, although the notary public
could serve as the required second witness, the witness’s affidavit
contradicted that of the notary public in that the witness attested the four
signatories were not together at signing, while the notary attested all four
were present. Id. at 547.

    Similar to Simpson, there is an apparent conflict as to who was present
at the time the self-proof clause was executed. The notary public attested
that four people were “sworn and declared to the undersigned,” yet only
three people signed. Further, the three signatories swore that four people
were present at the signing. This issue remains unresolved.

   Accordingly, we reverse the entry of final summary judgment and
remand for further proceedings. In so doing, we note that we agree with
the trial court’s conclusion that the waiver attached to the 1982 Will
applied to only that will, and not to future wills executed by Testator.

   Reversed and remanded.

MAY and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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