Codicil To Will Valid Despite Questions Raised By Witness

SEPTEMBER 13, 1999 VOLUME 7, NUMBER 11

Last week Elder Law Issues reported on the Tennessee case of Cleon Cooke, in which bank customer service representatives apparently did not know how to properly witness and notarize a will according to state law (“Bank Not Liable For Mistakes Made By Witnesses, Notary”). Sometimes the problem is the opposite—the witnessing may work too well when viewed after the fact.

Percy Lee Clark lived in Michigan, where he operated an auto salvage business. In 1985 he signed a new will, leaving $10,000 to a business associate, Kevin Watmuf. By a codicil signed a few years later, he also gave Mr. Watmuf a right of first refusal on the purchase of his business after he died.

In 1995, Mr. Clark had his lawyer prepare a new codicil. This time he decided he would not leave Mr. Watmuf any cash, but would give him the auto salvage business outright. Mr. Clark apparently signed the codicil, had it witnessed by his lawyer, and then took it to his brother William Clark to sign as a witness.

Mr. Clark’s brother signed the codicil as a witness, but without reading it or asking Mr. Clark what he was signing. As he said later, he “just figured he was my brother [and] I ought to be able to trust him.”

What Mr. Clark’s brother had signed was a statement that he had watched Mr. Clark sign the codicil, that he understood its contents, and that Mr. Clark knew it was a codicil to his will that he was signing. None of that was true, he said later from the witness stand. In fact, he said, when he signed the witness statement there were no other signatures on the document at all.

Two years later, Mr. Clark decided he no longer wanted to leave the auto salvage business to Mr. Watmuf, and so he visited a new lawyer to revoke his earlier will and leave everything instead to his family. Unfortunately, he died before the new will was executed.

Mr. Watmuf sought to admit the will and the codicil giving him the business. Family members objected, citing the irregularities in signing and witnessing of the 1995 codicil. The Michigan trial judge ruled that the codicil was a valid will in spite of the testimony of Mr. Clark’s brother, and the case was appealed to the Michigan Court of Appeals.

The appellate court upheld the lower court’s decision, and admitted the questioned codicil to probate. Michigan law (like Arizona law) sets up a presumption that a will which appears to have been properly signed and witnessed was in fact properly executed. Quoting another, similar Michigan case, the Court of Appeals ruled that “even where a subscribing witness denies the existence of certain facts necessary for the legal execution of the will, the presumption of regularity may prevail over such direct evidence.” In other words, Mr. Clark’s apparent compliance with the statutes governing will signing would overcome later challenges based on the testimony of a witness who denied that his own signature was valid. Estate of Percy Lee Clark, August 31, 1999.

Why would state law prevent a challenge where the signing requirements might not in fact have been properly met? Primarily because the possibility for fraud is so high. If a witness is permitted to recant his former declaration of the validity of the will, noted the judges, it would open even the most carefully-drawn wills to defeat by fraud after the death of the testator.

Despite public perception that will contests are commonplace, the reality is that wills are seldom challenged. Particularly when the will is drawn by a competent attorney, and includes appropriate recitations regarding intent and witnessing, it is extremely difficult to disprove the validity of the will. Centuries of legal history incorporated by the American adoption of the English Common Law have established the basic principles: it is important to comply with the requirements for execution of a will, but once those requirements have been met it is extremely difficult for disgruntled heirs or devisees to challenge the result.

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