Dalk v. Allen, 774 So. 2d 787 (2000)
Author: Anonymous

Facts: Ms. Dalk, challenged the legitimacy of a will purported to be that of her half sister, the decedent, McPeak.  The will was drafted by an attorney as part of a series of eight documents requiring her signature.  Due to the circulation of multiple original documents for her signature, by mistake the will was not physically signed by the deceased, but it was signed by the witnesses and the notary at that meeting.    

Issue: Whether the will of the decedent McPeak was properly executed in accordance with the laws of Florida?  Whether the constructive trust established by the trial court under Tolin can be applied?

Holding: 1) No.   2) No, ordering a constructive trust would validate an invalid will.

Procedure: Trial ct order admitting the will to probate is reversed and the case is remanded to consider the counter petition for intestate administration.             

Rule: Every will must be signed at the end or that the testator’s name be subscribed at the end of the will by some other person, in the testator’s presence and at his direction. In order to make a valid will, the testator must strictly comply with the provisions for formal execution. The burden is on the proponent of the will to establish its formal execution and attestation.

Rationale: It is obvious that the will was not signed by the decedent and a will is not valid unless it has been executed under the laws of Florida to assure authenticity and avoid fraud.   However, it is clear from the record that the absence of the signature resulted from a mistake.  She intended to sign the will but did not, nonetheless the will is not entitled to probate for lack of her signature b/c once declared invalid, a testator’s intent is no longer controlling and the property must pass intestate.