Wills & Trusts

What if Witnesses to My Will Have Died Or Moved?

This is not critical, but if you believe there will be any problems on your death about the probating of your will, or questions concerning its validity, you should not ignore this possibility. Remember that the purpose of witnesses is not to testify about the gifts you made. Rather, the purpose of a witness is to testify that at the time you made that particular will, you appeared competent, and you appeared not to be acting under any fraud or undue influence.

Thus, if a person has been disinherited [meaning that you give that person nothing] in your will, and you expect it will surprise or shock them and that they will be upset, you should keep in mind that one of the considerations for an heir who feels slighted is to contest the validity of the will. Our example above shows how a person who is disinherited by a will can be "inherited" again under the laws of intestacy, by having the will declared invalid. And one means of contesting the validity of a will, is to present proof that the maker was acting under duress, or by fraud, or was not competent at the time the will was made.

If you think this outcome is possible, an easy way to make sure witnesses are present to testify about the circumstances surrounding the signing of your will is to make sure you have witnesses who are alive, disinterested in your estate, and who are close enough to come to court, if needed. Thus, the best advice if a witness has died or moved away, is to execute a new will, if it is possible. Remember not to get too fancy, however.

For example, assume your father was 60 when he executed his will, giving 90% of his estate to you and disinheriting your brother. Now that he is 85, you remember that both of the witnesses to the will have died. Thus, you have him execute another will with the same provisions and new witnesses. Everything is okay, right? Wrong - your father is now 85, and in the court's mind there is a great chance that his competency might be questioned should your brother try to contest the drafting of the new will.

Thus, by trying to be too careful, you may have created a problem where none existed, and created an opening for a contest on the grounds of mental competency where this might not have been a valid ground for a contest had the old will remained in place.

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