826 So. 2d 245 (Fla. 2002)
On May 7, 1999, Christel McPeak, a resident of Ocala, Florida, died.1 Prior to her death, McPeak had her attorney prepare three documents, including a will, a durable power of attorney, and a living will and designation of health care surrogate.2 At a meeting with her attorney, McPeak 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.3 However, McPeak failed to sign a copy of her will.4
After McPeak's death, her niece, Bonnie Allen, and her half-sister, Margarete Dalk, filed separate petitions for administration with the circuit court.5 After a hearing, the circuit court entered an order which admitted the will to probate and appointed a personal representative.6 The court found that the decedent's failure to sign the will did not impose a bar to probate.7
The Fifth District Court of Appeal reversed the circuit court's decision.8 The Fifth District acknowledged that the decedent probably intended to sign the will.9 However, it 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.10 Since the will was improperly executed, a constructive trust could not be imposed because it would have had the effect of validating an invalid will.11 The Fifth District certified the question referred to above as being one of great public importance to determine the scope of the decision in In re Estate of Tolin.12
The Supreme Court of Florida has for review the decision of the Fifth District Court of Appeal on the certified question.13
Whether a constructive trust may 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?14
The primary consideration in construing a will is the intent of the testator, yet when testamentary intent is contained in a will it can only be effectuated if the will has been validly executed.15 The requirements for a validly executed will are detailed in section 732.502, Florida Statutes, which mandates that the testator sign at the end in the presence of two attesting witnesses who also sign, and a testator must strictly comply with these statutory requirements to create a valid will.16
No. Christel McPeak failed to sign her will at the meeting with her attorney, although she executed the other documents prepared at the same time.17 The circuit court admitted the will to probate and alternatively ruled that a constructive trust should be imposed in favor of the niece.18 The Fifth District reversed because the will was improperly executed, finding no evidence that the decedent intended the typewritten name to serve as her signature.19 This Court agrees that imposing a constructive trust would validate an invalid will and declines to extend In re Estate of Tolin to these facts, as the decedent made no attempt to comply with the statutory execution requirements.20
The certified question is answered in the negative and the decision of the Fifth District is approved.21
Related opinions on this issue
Joined by Lewis, J.
Chief Justice Anstead agrees with the majority that the holding of In re Estate of Tolin should not be extended beyond its unique facts to the present case.22 He writes separately to point out that courts in other jurisdictions, when faced with analogous facts, have similarly declined to give effect to a will where a substantial omission or mistake by the testator vitiated the execution of the will.23 Anstead cites In re Rand's Will as a case with facts strikingly similar to the present case.24
In that case an unsigned will was not admitted to probate despite the testator's declarations and subsequent codicils.25 He also cites In re Estate of Pavlinko where the court declined to reform mutual wills that were mistakenly signed by the wrong spouses.26 Anstead underscores that signature remains the most fundamental of the Wills Act formalities.27
Even proponents of the substantial compliance doctrine have not suggested that it is dispensable.28