Appeals Court Walks Fine Line When It Comes To Execution of Will

Anyone who is 18 years old or older and of sound mind can create a Will in Massachusetts, so long as she signs it and, by her express direction, has it attested and subscribed in her presence by two or more competent witnesses.

This sounds straightforward.  But a recent case before the Massachusetts Court of Appeals shows just how tricky a Will signing can be when you don’t work with an attorney who knows how to properly execute a Will.

Alice McDonnell and John Turner arrived at the bank with Helen Kendall and an unsigned Will.  (The opinion doesn’t describe their relationship).  Mr. Turner explained to a bank employee that Ms. Kendall, who was 89 years old at the time, needed help executing the Will.  The bank employee, who was also a notary public, spoke with Ms. Kendall for a few minutes and agreed to notarize the documents.  Ms. Kendall sat down at a desk and read her Will’s notarization clause out loud.  (The clause, which is fairly standard in most Wills, stated that Ms. Kendall was executing the Will voluntarily and that the witnesses both believed that Ms. Kendall was over 18, of sound mind and under no constraint or undue influence).  Then she signed the Will.

There was only one problem.  There were no witnesses sitting at the table watching Ms. Kendall sign her Will.  Instead, once Ms. Kendall had finished signing the Will, the notary called over two bank tellers, who hadn’t seen Ms. Kendall sign the Will.  The tellers signed as witnesses, and then the notary affixed her seal to the document.  The tellers did not talk to Ms. Kendall about the Will at all.

When Ms. Kendall passed away, some of her heirs challenged the Will in court.  They alleged that Ms. Kendall improperly executed the Will because the witnesses did not actually see Ms. Kendall sign the Will and Ms. Kendall failed to acknowledge that the signature on the Will was hers before the witnesses signed the document.

Under clearly established Massachusetts law, witnesses do not have to actually watch a person sign her Will, so long as the person signing the Will acknowledges to the witnesses that the signature on the document is her own.  However, in this case, Ms. Kendall did not speak with the witnesses at all.  The Court of Appeals called this case a “close question”, but it allowed the Will because Ms. Kendall read the notarization clause out loud, the notary carried out the instructions in the notarization clause by procuring the two witnesses, and Ms. Kendall watched the witnesses sign the Will without objection.  (The Appeals Court is an intermediate court of appeals, which means that the Supreme Judicial Court can still overrule this decision – we’ll keep you posted).

The moral of this story is simple.  Don’t prepare or execute your own legal documents.  If Ms. Kendall had worked with an experienced Massachusetts estate planning attorney, like the ones at Brown & Brown P.C., she would have been assured that her Will was properly signed, and her estate would have saved thousands of dollars in legal fees and years of litigation.

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