Bain v. Hill

District Court of Appeal of Florida

Bain v. Hill

639 So. 2d 178, 1994 Fla. App. LEXIS 6609, 1994 WL 316560

District Court of Appeal of Florida·Decided July 5, 1994·No. No. 94-302·Published

Opinion

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.

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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.

Bain v. Hill, 639 So. 2d 178, 1994 Fla. App. LEXIS 6609, 1994 WL 316560 (Fla. Ct. App. 1994).

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Opinion

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