Posts Tagged ‘will witness’

Can a Copy of a Missing Will be Admitted to Probate?

AUGUST 15, 2016 VOLUME 23 NUMBER 30
You’ve signed your will. We’ve given you the original in a fancy envelope, and a copy showing your signatures. What should you do with it?

For most people, most of the time, it is sufficient to just keep the original will in a convenient place at home. What to do with the copy? Put it in a different, but also safe, place. Include a note telling your family where to look for the original.

What happens if we can’t find your will after you die? It may not mean that your estate plan is frustrated, but consider what happened to estate planning documents signed by Irene Wilson (not her real name).

Irene was a librarian and an author of children’s books, and she lived in Maryland. She never married, and had no children. She did have a niece and a nephew — her closest relatives — but she was not particularly close to them.

After her retirement, Irene moved to rural Pennsylvania. By age 87 she was still living at home but unable to easily get up her stairs; she set up a first-floor bedroom for herself. She also had a cousin who lived upstairs and helped take care of her.

In 2007 Irene contacted a local Pennsylvania lawyer about updating her will. She named a long-time friend as executrix (what we in Arizona would call personal representative) and left most of her estate to her church back in Maryland. Three years later she updated the will with a new codicil, naming her live-in caretaker as execturix; at the same time she transferred her home to the church she attended in Pennsylvania, reserving a life estate for herself.

Both the original will and the original codicil were carefully placed in an unlocked metal box near her bedroom on the first floor; “conformed” copies of both were in a locked safe in an upstairs bedroom. The attorney who prepared both documents also kept a “conformed” copy.

Pause a moment for explanation: what is a “conformed” copy? In modern usage, it is a photocopy of the original, unsigned document, with a notation like “/s/” placed on the signature blocks. Sometimes a stamped representation of the signer’s name is placed on the signature block. In either case, it indicates that the original was signed — though the signature itself is not usually copied.

Six months after Irene signed her will and placed her conformed copies near her downstairs bedroom, her niece came for a visit. It did not go well. The niece told Irene that there were important family documents and heirlooms that she wanted to receive on Irene’s death. She also told Irene that she should move out of her house and into a nursing home. Irene was upset by the visit, and by the follow-up phone calls from her niece.

A few months after the niece’s visit, Irene’s lawyer called on her at home. She did not say anything about wanting to change or revoke her will, or about any changes in her plans.

Irene died a week after the lawyer’s home visit. When her caretaker went to the house to retrieve the original will, she found an empty envelope in the downstairs box, and all of the papers missing from the safe upstairs. Oddly, the original codicil and some other papers were still in the downstairs box; the copies of those documents were missing from the safe.

Let’s stop here for a moment for reflection. Did Irene have a valid will? Can the copy of her will from her lawyer’s file be admitted to probate?

Ready to proceed? Do you have your answer?

There is a presumption under Pennsylvania law (which governed Irene’s probate case, since she lived and died in that state) that when an original will was in the decedent’s possession before death but can’t be found. The presumption makes sense: it is that the decedent must have destroyed the original with the intent to revoke it. The same presumption, by the way, exists under Arizona law (and, probably, under the probate laws of most or all of the U.S. states).

The Pennsylvania probate court (it’s actually called orphan’s court, but no matter) ruled that the evidence suggested that Irene had not intended to revoke her will, and the lawyer’s conformed copy was admitted to probate. The next level of review, however, resulted in the opposite outcome: the Pennsylvania Superior court reversed, ruling that two witnesses would have had to testify that they actually saw Irene sign the original document. That meant the will was invalid, though the codicil (which was still intact in the metal box) would be effective. Irene’s caretaker would be in charge of her estate, but her niece and nephew would inherit most of her wealth.

Was that your prediction? If not, then you might take comfort in the next step. The Pennsylvania Supreme Court reversed the intermediate ruling, returning the outcome to the probate court’s finding: the copy of Irene’s will was, after all, admitted to probate. The Supreme Court found that the lawyer’s testimony about witnesses to the original will was sufficient — there was no need to produce the actual witnesses to testify about the signing. In re Estate of Wilner, July 24, 2016.

Would the same thing happen in Arizona? Yes, almost certainly. Given how easy it is to make photocopies, most lawyers today would have copied the will after signature rather than making conforming marks on a copy, but the outcome would not be different in most cases. The key is whether there is a legitimate explanation about why the original might be missing, more than whether specific technical requirements have been met.

So what should people do with their original wills? Put them in a safe place. Tell someone — the person named as personal representative, close family members, or someone — where the originals are located. Keep track of originals over the years (do you know where your original will is right now?). But what happened to Irene is unlikely to happen if you are leaving your entire estate to your children in equal shares (or to your only niece and nephew).

Notarized Will Fails for Lack of Witnesses

MAY 16, 2016 VOLUME 23 NUMBER 19

Frankly, we are surprised by the number of cases we see in which wills are improperly prepared or signed. The rules governing wills are not really that complicated, and it should be pretty straightforward to comply with them. The cases we see mostly involve people who want to save a couple bucks, and so do their estate planning themselves — who needs legal help to handle those simple rules, right? Except that they keep making mistakes.

One basic rule (there are exceptions, but let’s get the rule straight first): a will needs to be in writing, signed by the person whose will it is (the testator), and witnessed by two people who see the testator signing the will. Ideally, the witnesses should both be in the room together with the testator and sign the will immediately.

So-called “holographic” wills can also be valid in Arizona, so long as they are actually in the handwriting of the testator (and signed). No witnesses are required on a holographic will. Still, we wonder why anyone would rely on this type of will, when it is probably not very difficult to rustle up two witnesses.

Does a will need to be notarized? No. In fact, notarization does not help with the witness requirement, so a will with one witness and a notary is not valid (in Arizona — other states may be different). The notion that the notary makes a will “official” in some way is a misguided one.

Arizona has a case that many might consider surprising, in which a witness signed the will after the testator’s death. Understand that the witness was present when the will was signed, and when another witness signed, but simply did not put pen to paper until the problem was pointed out in probate proceedings. The Arizona courts ruled that the delayed signature was permissible, and the will was valid.

That Arizona case is the background for a Washington will contest concluded last week — with a different outcome. It involved a Washington resident (we’ll call him Ben Hamilton) who spent his winters in Arizona. He had a valid will, signed in Washington in 1988, and a valid codicil, signed (again in Washington) in 1999. They left everything to his brother.

In 2011, when Ben was 77, he had heart surgery in Washington. After the surgery he went to live with his brother, but soon was eager to leave. He contacted friends in Arizona, and two of them drove to Washington, picked Ben up, and took him to Arizona.

While in Arizona, Ben prepared a new will. He and one of his friends went to the office of a local notary public, and Ben signed the will in front of the notary and his friend. The notary signed and applied her notary stamp; the friend did not sign.

Five days later, Ben committed suicide. Back in Washington, his brother filed the 1988 will and 1999 codicil with the probate court. Ben’s Arizona friends tried to figure out what to do with the new will Ben had signed. They sent it to a lawyer in Washington, asking for advice about whether it could be filed with the probate court there.

After the Washington lawyer found the Arizona case on late witnessing, the friend who had actually been present for the signing went to Washington, signed the document as a witness and left it for submission to the Washington court. The lawyer filed it, arguing that it revoked the 1988 will and 1999 codicil.

Ben’s brother moved for summary judgment, arguing that the purported will would be invalid under Arizona law because a notary is not a “witness” in the context of will signing. Although that is a correct statement of Arizona law, the Washington probate judge at first denied the motion. Then Ben’s brother argued that the will should be evaluated under Washington law, and the probate court agreed. The challenge to Ben’s 1988 will and 1999 codicil was dismissed.

The Washington Court of Appeals agreed with the probate court. Since Ben’s friend was actually in Washington when she signed as a witness, ruled the appellate court, and since that was the final step necessary to make it a valid will, it had been executed in Washington. Under Washington law, the late witnessing would be ineffective, and the “will” was not valid. Estate of Hook, May 9, 2016.

Although the Washington court might not have been familiar enough with Arizona law to be comfortable ruling on the validity of the document in Arizona, the outcome would have been the same. Even though Arizona has permitted witnesses to sign even after the death of the testator, Arizona has also ruled that a notary is not a witness, or at least not when they sign using their notarial authority and seal. The notarial act, according to the Arizona courts, is different from witnessing — it is just a determination that the signer is who they claim to be, not an affirmation that they intend the effect flowing from signing the document. So Ben’s will would have been invalid even if Arizona law had been applied.

But that begs the question: why didn’t Ben just get some competent legal advice? Just because a notary public signs legal documents it does not follow that they know the rules for preparing or witnessing a will. Presumably Ben had some specific things he wanted to accomplish when he prepared and signed his new document. Was it not important enough to get some legal advice about how to make it work?

Obviously Ben was under a lot of pressure and, probably, preoccupied. Still, he did not accomplish what he seems to have wanted, and it would have been easy to do so. His story is cautionary — on a number of levels.

©2017 Fleming & Curti, PLC