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Why It Is Important to Have an Attorney Advise You Regarding Wills

The following account demonstrates the importance of having a qualified attorney supervise the proper execution of a will to ensure its validity.


Arthur Burton died in March 2000 at the age of ninety. Stella, his wife of sixty-five years had died in 1997. At the time that Stella died, Arthur lived in a condominium in his hometown. Soon, at the request of his son, Artie, he moved to his son's house in a neighboring town to live with his son and his daughter-in-law, Regina. While Arthur was living with Artie and Regina, Artie suddenly died. Thereafter, Regina became irrationally upset with Arthur because she thought that he, rather than her husband, should have died.

The Will 

Under pressure from Regina, in September 1998, Arthur executed a will leaving all of his assets to Regina. The will was prepared by a relative of Regina.

Regina continued a campaign of harassment of Arthur, saying such things to him as "you should have died instead of my husband" and demanding that he return things given to him by Artie. Due to Regina's harassment, Arthur moved back to his hometown. The members of his church assisted him in his move back to his condominium and located a person to stay with him and care for him. Father Smith, the pastor of the church, was particularly helpful in taking Arthur to and from doctor's appointments, picking up prescriptions from the pharmacy, and visiting with him on a regular basis. Father Smith did this at Arthur's request because Regina would launch into tirades against Arthur whenever she took him to his appointments.

The Will, Revisited 

In August 1999, Arthur asked Father Smith to find him an attorney to assist him with his estate plan. Father Smith did not known any qualified attorneys, but asked Mark Anderson, a financial planner, to meet with Arthur. Arthur had by this time left his home and moved into an assisted-care facility. Mr. Anderson met with Arthur and correctly ascertained Arthur's wishes to revoke his will and name the church as the primary beneficiary under a new will. Arthur stated to Mr. Anderson that he would rather die intestate (without a will) than have a will in effect which gave his assets to Regina. In the event of Arthur's intestate death, his estate would go to distant relatives or to the state rather than to Regina.

Mr. Anderson suggested to Arthur that if he wished to revoke the will that left his assets to Regina, he could accomplish this by tearing up the will. Mr. Johnson tore up the will in front of Mr. Anderson with the intention of revoking it.

The New Will 

Mr. Anderson then arranged for an attorney to prepare a new will for Arthur in accordance with his instructions. The will was prepared, and, in accordance with Arthur's wishes, named the church, rather than Regina, as the primary beneficiary. In November 1999, Mr. Anderson brought the new will to Arthur at a hospital where Arthur had been taken from the assisted care facility. Arthur then read and signed the will in the physical presence of Mr. Anderson, and Mr. Anderson signed the will as a notary public. Father Smith was then called into the hospital room and Arthur declared to him, in Mr. Anderson's presence, that he had signed his will and asked Father Smith to hold the original of the will in his church file.

Mr. Anderson then took the original will to a meal hall near the church where the church was holding a benefit dinner. Arthur remained at the hospital. Present at the dinner were two church members. They knew Arthur, and Mr. Anderson "vouched" for Arthur's signature. Accordingly, at Mr. Anderson's request, they signed the will as witnesses. Mr. Anderson then gave the original will, in a sealed envelope, to Father Smith. Father Smith then put the will in the church file as requested by Arthur; he did not know the contents of the will until after the death of Arthur. The witnesses saw Arthur at church some time later and Arthur thanked them for signing the will.

The Dispute & Outcome

When Arthur died, Regina contested the new will and submitted a copy of the will Arthur had torn up. The law of the state where the will was executed required that a will be signed by the testator (Arthur) and two witnesses, each of whom had witnessed the testator sign the will or his acknowledgment of the will. A case decided under the state's law required that "a literal construction of the statute with regard to formal requisites is demanded." This is true in virtually all states. Because the will was not signed by the witnesses in Arthur's presence or later acknowledged by him to them, it appears likely that the new will be declared invalid.

Further, it appears likely that the church will not be granted standing to raise the issue of the revocation of the earlier will. This is because, under the laws of the state where the will was executed, only a party who will benefit by the revocation of a will can raise the issue of the revocation. The improperly executed and therefore invalid second will would not come into play by virtue of the revocation of the first will. Rather, Arthur's heirs at law (distant relatives) would be entitled to the assets of the estate. Thus, the church will likely be considered a stranger to the proceeding and not be permitted to introduce evidence of the revocation. If a distant relative becomes aware of the proceeding, an unlikely event, the relative can assert the revocation.

This demonstrates the important of strict adherence to will-signing formalities. An experienced estate planning attorney would have ensured that the witnesses were present in the room with Arthur when he revoked the earlier will and signed the new will. One cannot "vouch" for a signature on a will.

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