Will Execution, Witnesses and Notaries – State Law Does Matter

proper will excecutionWhere state law matters in proper will execution

We expect that as time passes, people become more sophisticated and aware of what must be done to execute a valid will. Unfortunately, this is not so.

In certain states, execution of a will is complete when it is signed by a second witness. Some states require the witnesses to sign in the presence of the testator while others permit the witnesses to sign within a reasonable time thereafter. A Washington case saw the testator execute a valid will in that state in 1988 (the “1988 Will”). Then, in 2012, the testator executed another will in Arizona (the “2012 Will”) in the presence of a notary who also signed as a witness. The testator died in the State of Washington and probate was sought there. One of the testator’s friends, who present at the execution of the 2012 Will in Arizona, traveled to Washington where he added his signature as a witness. Arizona does not require the witnesses to sign in the presence of the testator, only within a reasonable time thereafter.

Which will was admitted to probate?

The State of Washington admitted the 1988 Will. Although Arizona does not require the witnesses to sign in the presence of the testator, the court held that the 2012 Will was executed in the State of Washington when the second witness signed and the act was finally completed. The rule in Washington requires that the two witnesses to sign in the presence of the testator so the 2012 Will was invalid by Washington law. The court held further that an Arizona will could only be valid as a foreign will if it was valid or complied with the law of the state where executed. The outcome may have been different had the second witness signed in Arizona, when the testator signed, within a reasonable time thereafter or, perhaps, if the 2012 Will was brought back into Arizona. This case also addressed whether the testator ever gave up his Washington domicile and was a contributing factor to the weight given to law of the place of execution. (In re Estate of Hook).

A California case poses an interesting twist where a testator and two witnesses appeared before a notary and subscribed the will. The will was challenged and the notary admitted in a deposition that he had forged the signature of one witness. The trial court admitted the will and the appellate court affirmed holding that the jurat indicated that the notary was present at the time the testator signed and, therefore, could be counted as the second witness. A jurat is found at the very end of an affidavit. A jurat states when, where and before whom the affidavit was sworn. (In re Estate of Harris).

The bottom line

If people wonder why attorneys prefer that clients come to their offices to execute documents, especially wills, these two cases should enlighten them. This is especially true where you may not know if local law was complied with at execution. One of my clients, a consultant, would say: “If you do not have time to do it right, how will you ever find time to do it over?” Imagine the savings in time and money had a second witness signed before the testator and the notary.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, James McDonough, at 201-806-3364.

For more articles dealing with wills, trusts and estates, check out:

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James F. McDonough, Jr. concentrates on wealth preservation and estate planning for high net worth individuals, closely held business matters and ownership succession, estate administration and income tax planning. He worked for three years for the public accounting firm, then known as Touche Ross, where he obtained his license as a Certified Public Accountant in 1983. In 1984, he was employed as a tax attorney by Union Camp Corporation where he engaged in planning for corporate income deferred compensation, qualified plan and tax-free exchanges. In 1986, Mr. McDonough was employed as Tax Manager for Monroe Systems For Business, Inc. Thereafter, he was employed as a tax attorney for five years where he engaged in corporate and estate tax planning and estate administration and litigation. For more information, please visit James McDonough's full biography at Scarinci Hollenbeck

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