Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Will Execution, Witnesses & Notaries – State Law Does Matter

Author: James F. McDonough

Date: October 18, 2016

Key Contacts

Back

Where state law matters in proper will execution

We expect that as time passes, people become more sophisticated and aware of what must be done to execute a valid will. Unfortunately, this is not so.

In certain states, execution of a will is complete when it is signed by a second witness. Some states require the witnesses to sign in the presence of the testator while others permit the witnesses to sign within a reasonable time thereafter. A Washington case saw the testator execute a valid will in that state in 1988 (the “1988 Will”). Then, in 2012, the testator executed another will in Arizona (the “2012 Will”) in the presence of a notary who also signed as a witness. The testator died in the State of Washington and probate was sought there. One of the testator’s friends, who present at the execution of the 2012 Will in Arizona, traveled to Washington where he added his signature as a witness. Arizona does not require the witnesses to sign in the presence of the testator, only within a reasonable time thereafter.

Which will was admitted to probate?

The State of Washington admitted the 1988 Will. Although Arizona does not require the witnesses to sign in the presence of the testator, the court held that the 2012 Will was executed in the State of Washington when the second witness signed and the act was finally completed. The rule in Washington requires that the two witnesses to sign in the presence of the testator so the 2012 Will was invalid by Washington law. The court held further that an Arizona will could only be valid as a foreign will if it was valid or complied with the law of the state where executed. The outcome may have been different had the second witness signed in Arizona, when the testator signed, within a reasonable time thereafter or, perhaps, if the 2012 Will was brought back into Arizona. This case also addressed whether the testator ever gave up his Washington domicile and was a contributing factor to the weight given to law of the place of execution. (In re Estate of Hook).

A California case poses an interesting twist where a testator and two witnesses appeared before a notary and subscribed the will. The will was challenged and the notary admitted in a deposition that he had forged the signature of one witness. The trial court admitted the will and the appellate court affirmed holding that the jurat indicated that the notary was present at the time the testator signed and, therefore, could be counted as the second witness. A jurat is found at the very end of an affidavit. A jurat states when, where and before whom the affidavit was sworn. (In re Estate of Harris).

The bottom line

If people wonder why attorneys prefer that clients come to their offices to execute documents, especially wills, these two cases should enlighten them. This is especially true where you may not know if local law was complied with at execution. One of my clients, a consultant, would say: “If you do not have time to do it right, how will you ever find time to do it over?” Imagine the savings in time and money had a second witness signed before the testator and the notary.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, James McDonough, at 201-806-3364.

For more articles dealing with wills, trusts and estates, check out:

  • New Jersey Estate Taxes May See Reform
  • New York Plans Changes to Estate Taxes
  • NJ State Senator Calls for Income Tax Hike and Estate Tax Cut

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide post image

How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide

Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]

Author: Christopher D. Warren

Link to post with title - "How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide"
Gross Lease vs. Net Lease: Understanding the Key Differences post image

Gross Lease vs. Net Lease: Understanding the Key Differences

Commercial leases can take a variety of forms, which is often confusing for both landlords and tenants. Understanding the different types, especially the gross lease structure, is important when selecting the lease that best suits your needs. One key distinction between lease types is how rent is calculated and paid. This article addresses the two […]

Author: Robert L. Baker, Jr.

Link to post with title - "Gross Lease vs. Net Lease: Understanding the Key Differences"
What to Do If You Are Impacted by a Retailer Bankruptcy Part 2 post image

What to Do If You Are Impacted by a Retailer Bankruptcy Part 2

Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]

Author: Brian D. Spector

Link to post with title - "What to Do If You Are Impacted by a Retailer Bankruptcy Part 2"
The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business post image

The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business

Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]

Author: Dan Brecher

Link to post with title - "The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business"
Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1 post image

Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1

The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]

Author: Brian D. Spector

Link to post with title - "Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!

Please select a category(s) below: