Bank Not Liable For Mistakes Made By Witnesses, Notary

SEPTEMBER 6, 1999 VOLUME 7, NUMBER 10

Witnesses are required for a number of legal documents, including wills (in most cases), powers of attorney and health care directives. Most lawyers recommend not having family members witness legal documents, since questions may later be raised about the signer’s competence, or the possibility of undue influence. It is often difficult, however, to find witnesses to even simple documents, particularly if the senior is ill, or in a hospital or nursing home.

Many facilities block employees from acting as witnesses. When a facility takes that position, it is usually because of concern about the possibility of employees being court witnesses, or becoming embroiled in bitter and protracted litigation. Friends may be reluctant to witness documents, and it is often difficult to ask for their assistance. When lawyers prepare the documents, they usually provide witnesses (often members of the lawyer’s staff). But when documents are prepared without a lawyer’s assistance, one of the most common places to look for a “professional” witness is at the senior’s bank.

It may seem like there is little risk involved in acting as a witness. It is easy, in fact, to be critical of those facilities that refuse to permit staff to witness documents. After all, how could acting as a witness cause any real problems?

The First Union National Bank of Hendersonville, Tennessee, knows what problems can arise from employees acting as witnesses. That’s where Cleon H. Cooke’s daughter took Mr. Cooke to sign a new will in 1995. Mr. Cooke waited in the car while his daughter went inside and talked to notary Beverly Pitt, a Customer Service Representative at the Bank. Ms. Pitt went out to the car with Mr. Cooke’s daughter, and watched him sign his will; she then took the document inside the bank and got two other bank employees to sign as witnesses, and then she notarized the document.

The problem with Ms. Pitt’s actions is that Tennessee, like Arizona, requires the witnesses to a will to sign in the presence of the testator (the person making the will). The First Union employees even signed a standard affidavit, claiming that they had done just that. But when Mr. Cooke died, his widow contested the will. She pointed out that it had not been signed properly, and that Mr. Cooke’s last valid will was a 20-year-old document that left his entire estate to her.

Mr. Cooke’s daughters, frustrated in their attempt to inherit Mr. Cooke’s dry cleaning business, sued the bank, the notary and the witnesses. The daughters alleged that the witnesses should pay them what they would have gotten from their father’s estate, because they had signed a false affidavit.

If the witnesses had read the document they signed, claim Mr. Cooke’s daughters, they would have seen that they were supposed to watch Mr. Cooke sign and themselves sign in his presence. Furthermore, the daughters argued, the notary should have known what was required to make a will valid, and the bank should have provided training to its employees in how to witness a will.

The Tennessee Court of Appeals disagreed. Although the witnesses owed a duty to Mr. Cooke, ruled the court, they owed no duty to his daughters, and the case against them could be dismissed. If the employees could not be sued, then the bank was not liable, either, and the lawsuit against the bank was also dismissed. Battles v. First Union Bank, September 1, 1999.

Even though the witnesses and the bank prevailed, both incurred legal costs, time in court and legal proceedings, and the anxiety of pending litigation. Those costs are the very reason so many facilities refuse to permit staff to act as witnesses.

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