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Monday, July 5, 2010

Who can witness a Will?


It's easy to make mistakes when you're making legal documents without a lawyer, and witnessing is certainly an area that causes problems. To be fair, I have once or twice seen lawyers make mistakes with witnessing too!

Who can witness a person signing his or her Will or Codicil? Pretty much anyone who has reached the age of majority and is mentally competent can be a witness, but there are some exceptions.

No beneficiary of your Will should be a witness to that Will. Neither should that beneficiary's spouse or common-law spouse be a witness. If they do act as a witness, the gift you want to leave to that beneficiary becomes invalid. Not only would that disappoint the beneficiary, but it could also leave you partially intestate (i.e. some assets not covered by the Will).

It is perfectly alright for your executor to be a witness. However, that won't work if the executor is also a beneficiary, as mentioned in the previous paragraph. If the executor acts as a witness, he or she might also be endangering his or her chance of being paid for acting as your executor.

It is alright for a creditor of the deceased to be a witness.

When I'm visiting a person at their home or at a care facility to have a Will signed, it isn't always possible for me to bring witnesses along. In a case like that, neighbours or staff at the care facility can act as witnesses. To protect my client's privacy, I do not ask the neighbours or the staff to read the document, though I make it clear that it is a Will that is being signed.

A Will has to be signed by the testator in front of two witnesses who both watch him or her sign. Then the witnesses both sign in front of the testator and each other. Later, one of the witnesses must sign an Affidavit stating that all of the proper formalities of Will signing were followed.

A holograph Will that is 100% in your own handwriting does not need to be witnessed (make sure you date it and sign it though).

19 comments:

  1. Can the brother-in-law of the lawyer who drafted the will, sign as a witness.

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    Replies
    1. Yes. The relationships that matter in terms of witnessing are those of the testator, not the lawyer.

      Lynne

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  2. Can my brother and his wife sign as witnesses on my will?

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    Replies
    1. Yes, they can, as long as neither of them is ever going to be a beneficiary of your will. If they are, then the witnessing will be valid, but they will never receive their inheritance under the will.

      Lynne

      Delete
  3. In this article you say " To be fair, I have once or twice seen lawyers make mistakes with witnessing too!" What can be done if this happens? In our case my Grandmother has passed away and now we have found out that her lawyer allowed my aunt (a named beneficiary of the will) to act as a witness.If it is known by all of the beneficiaries that the lawyer made a mistake by allowing a named beneficiary of the will act as a witness is there a way to allow my aunt to have what she should be inheriting?

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  4. Does a codicil need to be a registered attachment to a registered notarial will?

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    1. A codicil is intended to be a part of the will, therefore if a will is listed in a registry, it only makes sense to list the codicil as well. And they should physically be stored together as well.

      Lynne

      Delete
  5. can a lawyer have his secretary sign as a witness

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  6. Can a friend of a "Releasee" be a witness on a "Release Letter" signed by a "Releasor"

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  7. Can the notary public notarizing the self proving affidavit and his secretary be the witnesses to the will?

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  8. " If the executor acts as a witness, he or she might also be endangering his or her chance of being paid for acting as your executor." Why is that?

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  9. Can my sister and her husband sign as witnesses even though they live in the UK.

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  10. I'm going to move near my children and woman I live with is going in a home. I have a homemade will that is witnessed by 2 people and I left everything to my biological children. Can the person I lived with contest the will even though she is ill and going in a home.

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  11. Can wife of the executor be a witness, too? Executor is brother of the testator, and not a beneficiary of the will, i.e. neither executor and the wife. But executor will have the funds in Trust.

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  12. My aunt asked my parents to sign her will,as her witnesses. She told them that she was writing this will without her husband knowing. Are you allowed to do that?

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    Replies
    1. Yes, you are allowed to do that.

      I know you didn't ask this, but if your aunt left anything to your parents, and they are the witnesses, the gift to them will be void.

      Lynne

      Delete
  13. Hi Lynne. My father in law met a woman while he was fighting many illnesses. Before she moved in and before they got married he made her get a loan to pay off her debts as she lived off credid cards. He also got a prenub drawn up stating if she was to leave him she would get nothing but if she stayed until he died she would receive the furniture and a 1/3 of the value of his house.His children and grandchildren were to split the rest. He always made sure to give us a copy of his latest will along with a list of his current possessions for example... a 10 page duotang listing off all his tools and their serial numbers and told us to get a lawyer if something doesn't seem right.Unfortunately this last will we had a copy of was not properly executed as there is only one witness.here's the situation.... He recently died and his wife of 3 years presented us with a new will that is written entirely in her own hand writing appointing her as executrix as well as full beneficiary. No mention about his children or grandchildren at all, which i'm aware can be fought through the wills and variation act.On these pages appointing her as executrix and full beneficiary neither of the witnesses initialed anywhere on the page.It was a do it yourself will kit with 4 pages in total. My father in law's initials are not consistent wit his writing either. She told us she needed time to grieve and promised us she wasn't going to do anything and we have her recorded admitting she knew she had to probate because absolutely nothing was in joint names with her. She told us she would be in touch. Well about 2 weeks goes by and nothing. Then we try to call and no answer. Then her son calls us and says she no longer wants to communicate with us. Thats when we found out she sold all of his assets including ones her husband wanted his grandson to have. She didn't apply for probate giving us a chance to send her a notice of dispute before she flogged it all. she sold about $65,000 worth of assets for half their market value. Luckily we froze his bank accounts shortly after we found out she was using his debit card too. (he kept all of his accounts separate from her) My father in law had lung cancer, cirrhosis of the liver and a frontal lobe brain injury.He took over 11 meds at the time the will was made and majority of them have cognitive effects. We are fighting her as her actions have been spiteful and her errors were deliberate. She has done everything a trusted executor should not do. She knew him for 3.5 years and my husband (his son) was his best friend for 34.The laws arent strict enough and dont always protect the innocent.She waived her fake will and managed to sell 2 Harleys, a boat, a truck, atv, and several thousands of dollars worth of wood working tools. Now we have nothing that was his to have as a keepsake in the family. It hasn't been easy for us kids to let that go and just focus on the dollar value of them. They meant more to us than that! My questions are Is the will valid if the witnesses do not initial every page? Is it not fraud that she used his bank card especially after his passing when she wasn't even on the account? And is it against the law the sell assets in an estate without probate if they are not in joint names? Thanks Lynne

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