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Thursday, March 5, 2015

My aunt made me executor and beneficiary, then I signed as witness. Is the will valid?

Every now and then I hear from a reader whose story just makes me wince. It's usually a story about someone who tried to do something nice for someone they cared about, but ended up leaving nothing but a headache. Not surprisingly, many of those stories involve home-made wills. These stories bother me because I - or any other competent lawyer - could have prevented the mistake and the headache with a five-minute chat.

Recently I heard from a reader who asked me a question, and has one of these stories. It's just such a shame that nobody asked for legal advice. Here's the question and my response:

"My aunt passed away and was a widow with no children of her own. We were always very close to each other and in the last 7 years I did all of her grocery shopping, errands and general maintenance for her. When she made (typed up herself) her will she named me as the executor and sole heir of everything. She had me sign her will as a witness and then the notary signed and stamped the will. Would this be considered a legal and valid will?"

If I understand you correctly, you were the only witness to the will. The notary only notarized, and did not witness the will. Wills that are typewritten need two witnesses, so if there is only one, the will is not valid.

Even if, for some reason, the number of witnesses was not a problem, this will would still not do what your aunt wanted it to do. The law is that a person who witnesses a will cannot be a beneficiary. The will itself would be valid (if there was another witness) but the gift to you would be void. In other words, your aunt would have a valid will that didn't leave her estate to you.

Your aunt's estate will be distributed as if she had no will. The fact that you helped her for seven years and had a close relationship with her will not give you any help here. The law says who gets the estate. As she doesn't have a spouse or children, her estate will go to her parents. If her parents are no longer alive, her estate will go to her siblings. If she had a sibling who passed away before her, that sibling's kids will divide that share between them. If your aunt had no siblings, her estate will be divided equally among all nieces and nephews.

If your aunt had any relatives that were closer in kinship than you are (such as siblings) then you cannot apply to administer her estate unless those who are closer in kinship, or are equally close in kinship, sign off to allow you to do that.

If only your aunt had seen a lawyer! These are two very basic will requirements that any lawyer would have been able to tell her about. She tried to do something to reward you and acknowledge your relationship, but she went about it the wrong way. She's certainly not the only one; an awful lot of people don't understand that as a formal legal document, a will has certain requirements that must be met. It's always worth it to talk to a lawyer when planning a will.

Since I haven't seen the will, I suggest that you take it to a lawyer local to you for an opinion on whether it's valid. I think you'll hear the same thing I told you, but it's always better to hear it from someone who can actually examine the document itself.



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