Don't Put Off SigningThat Will!
By Douglas Clark Hollmann, Esq.
In 1826, a man lay dying in his bed. He was
surrounded by his family and friends. He
dictated his will and signed it in front of
them. The two witnesses moved to an adjoining
portion of his bedroom and signed their names
to the will. In 1842, another man lay dying in his
bed, again surrounded by his family and friends.
He signed his will in front of everyone and the
two witnesses moved to an adjoining portion of
his bedroom and signed their names.
Relatives who thought they should have received
more from the two dead men fi led lawsuits
to have the wills declared invalid. The courts ruled
that the fi rst one was valid; the second was not.
Why? Because, in the 1826 case, the dying man,
even though he didn’t turn his head and look at
the witnesses signing his will, could have done
so and seen the two men witnessing his will in
the adjoining portion of his bedroom. In the 1842
case, the two witnesses in the adjoining portion
of the bedroom were around the corner and out of
sight. Why did this make a difference? Because
the law states that a will must be witnessed “in
the presence” of the person making the will.
Within sight of the person making the will was
“in the presence;” around the corner and out of
sight was not.
I learned about these cases when a will I was
probating was challenged by a relative who
thought the decedent should not have left him
out of her will. I was told that the decedent had
signed her will in the presence of two neighbors,
husband and wife, who had thereafter signed their
names as witnesses. I soon learned that the wife
had not come across the street with her husband
to sign the will as a witness. After the husband, in
front of the decedent, had signed off as a witness,
he took the will across the street where his wife
provided her signature as the second witness.
I immediately knew the will was invalid. But
the decedent in my case had done something
that allowed me to show the court that her will
should not be invalidated. She had executed a ‘codicil’ to her will. A codicil amends a will and
changes one or two items; it has to be signed and
witnessed just like a will. If it’s a good one, it
will have a paragraph that says it incorporates and
republishes the will it is amending. This codicil in
my case did contain those magic words and the
will was saved, being brought back to life by the
two new witnesses who signed the codicil “in the
presence of” the decedent, and by the language
that said the codicil “revived and republished”
the earlier will.
You don’t want to spend your inheritance
in litigation when something as simple as how
a will is witnessed can go awry. Don’t let the
courts, or greedy relatives, determine where your
hard-earned money goes. Be proactive and check
your will today.
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